BlackCloak Purchase Agreement

 

This Purchase Agreement (“Agreement“) is entered into on the Effective Date identified on the Signature Page of the Order Form by and between BlackCloak, Inc., a Delaware corporation (“BlackCloak“), and the customer identified in the Order Form (“Customer“).

 

1. SOFTWARE AS A SERVICE

BlackCloak shall provide access to its cybersecurity, identity theft, and privacy risk management software as a service platform (the “Platform” or “SaaS”) to certain employees or agents of Customer and, only upon Customer’s consent, their immediate family members (collectively, “Covered Parties”). Customer may procure access to the Platform on behalf of Covered Parties by executing an order form (each, an “Order Form”) identifying number and type of subscription plans being procured. An Order Form will be deemed approved when executed by both BlackCloak and Customer.

 

2. FEES & TERM

All fees identified in a Schedule shall be invoiced by BlackCloak and paid for by Customer in advance of SaaS being rendered. The subscription plan term shall start on the Commencement Date identified in each Schedule and shall continue for the Subscription Plan Term Length identified in each Schedule, notwithstanding the date that a Covered Party actually receives any portion of the SaaS. Thereafter, that Schedule and all fees associated with the Services identified on the Schedule shall automatically renew for successive one (1) year terms, unless either party gives written notice of termination to the other at least sixty (60) days before the end of the then-current term. This Agreement shall continue in effect as long as there is a Schedule in effect.

Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. To the extent BlackCloak has the legal obligation to pay or collect Taxes for which Customer is responsible, BlackCloak will invoice Customer and Customer will pay that amount (unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority).

If either party breaches any of its obligations under this Agreement in any material respect and the breach is not substantially cured within thirty (30) days after receipt of written notice describing the breach, then the other party may terminate that this Agreement or, in its discretion, the relevant Order Form, without penalty, by giving written notice to the breaching party at any time before the breach is cured.

 

3. RELATIONSHIP AMONG BLACKCLOAK, CUSTOMER AND COVERED PARTIES

The SaaS procured by Customer on behalf of Covered Parties are personal in nature (protection of home networks, personal devices, and personal privacy) and are not provided directly to Customer.

BlackCloak does not need and will not request confidential information about Customer to provide the SaaS. BlackCloak only needs the name of and way to contact each Covered Party from Customer. BlackCloak shall treat such information as confidential information of Customer.

Customer agrees that all data and information related to the Platform (including without limitation the component parts that are offered, how they are provided, pricing, and any accompanying software or documentation), as well as BlackCloak software, hardware, processes, and know-how will be deemed confidential information of BlackCloak and shall not be disclosed by Customer to any third party.

BlackCloak will provide Customer with periodic, anonymized and aggregated reporting about the Covered Parties’ experience with the Platform. Customer acknowledges that any specific information BlackCloak receives about any Covered Parties while providing access to the Platform will not be shared with Customer.

 

4. OWNERSHIP

As between the parties, BlackCloak and its suppliers own and reserve all rights, title and interest in and to the technology, ideas, design, specifications, concepts, techniques, inventions, and processes of any kind that make up the component parts of the Platform. Except as otherwise stated herein or in the agreement with the Covered Party, no right, title to or ownership of any of the foregoing is transferred to Customer or Covered Parties.

 

5. REPRESENTATIONS AND WARRANTIES 

Each party represents and warrants that it has the power to grant the rights granted to the other party under this Agreement. Customer further represents and warrants that Customer shall not use the Platform for any unlawful purpose or in contravention of the rights of any third party.

BlackCloak warrants that the services provided as part of the Platform will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and as BlackCloak’s entire liability for any breach of the foregoing warranty, BlackCloak will, at its sole option and expense, promptly re-perform any services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming services.

Customer acknowledges that Covered Party’s timely provision of (and BlackCloak’s access to) Covered Party’s equipment, assistance, cooperation, data, information and materials is essential to the performance of any services, and that BlackCloak shall not be liable for any deficiency in performing any of the services if such deficiency results from Covered Party’s failure to provide full cooperation or incompatibility issues, software or hardware limitations, or other technical conflicts with Covered Party’s devices.

Customer acknowledges that the use of the Internet is inherently dangerous, subjecting information and devices to malware and other cybercriminal activity. Customer acknowledges that no cybersecurity tool can offer protection from all threats at all times. Customer acknowledges that protecting information and devices requires Covered Parties’ active participation, vigilance, diligence, and continued education as specified in the agreement between BlackCloak and Covered Party.

 

6. LIMITATIONS OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ORDER FORM, BLACKCLOAK HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHER, BLACKCLOAK DOES NOT WARRANT THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.

BLACKCLOAK’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR PLATFORM PROIVDED PURSUANT HERETO IS LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO BLACKCLOAK HEREUNDER FOR THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. Customer acknowledges that BlackCloak has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.

 

7. MISCELLANEOUS

1. Notices – All notices or approvals under this Agreement shall be directed to the addresses set forth on the Signature Page, as may be revised from time to time.
2. Independent Parties – Neither party is an agent, representative, joint venturer, or partner of the other party. Neither party shall have any right, power or authority to bind, enter into any agreement or incur any obligation on behalf of, the other party.
3. Export Control – Customer acknowledges that certain software and related technical data and services (collectively “Controlled Technology“) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all relevant laws and will not to export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required.
4. JURY TRIAL – EACH PARTY HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES PROVIDED BY BLACKCLOAK.
5. Attorneys’ Fees – If any action is instituted by a party to enforce any of the terms and provisions contained in this Agreement, or for breach thereof, the prevailing party in such action shall be entitled to such reasonable attorneys’ fees, costs, and expenses as may be fixed by a court of competent jurisdiction.
6. Arbitration – Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to binding arbitration under the rules of the American Arbitration Association (“AAA“) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Orlando, Florida and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of Florida to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party.
7. Nonsolicitation – Neither party will directly or indirectly, solicit or attempt to solicit any of the other party’s employees or other consultants to leave their employment or consultancy, either for itself or for any other person or entity. Notwithstanding the foregoing, neither party shall be precluded from employing personnel or consultants of the other party who respond unsolicited to a general advertising or other recruitment campaign not directed specifically at the other party’s personnel, including through recruiting agencies and position postings on company websites and third-party job boards.
8. Governing Law; Consent to Personal Jurisdiction – This Agreement shall be governed by the laws of the State of Florida, without regard to the conflicts of law provisions of any jurisdiction. To the extent that any lawsuit is permitted under this Agreement notwithstanding the arbitration provision above, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in and for Orange County, Florida.
9. Assignment – Either party may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of its relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or stock, change of control or otherwise.
10. Entire Agreement – This Agreement and any Order Form constitute the entire agreement and understanding between the parties with respect to the subject matter herein and supersede all prior written and oral agreements, discussions, or representations between the parties. To the extent any terms set forth in any Order Form conflict with the terms set forth in this Agreement, the terms of this Agreement shall control.
11. Headings – Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
12. Counterparts – This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile, electronic communication in portable document format (.pdf) or duplicate originals, and the parties agree that their electronically transmitted signatures shall have the same effect as manually transmitted signatures.
13. Severability – If a court or other body of competent jurisdiction finds, or the parties mutually believe, any provision of this Agreement to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
14. Modification, Waiver – No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed or acknowledged by the parties.