Black Ink Technologies Terms of Service
BEFORE USING BLACK INK TECHNOLOGIES’ SERVICES (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE ENTITY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER”) AND BLACK INK TECHNOLOGIES INC (“BLACK INK”), PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE SERVICES (THE “ORDER FORM”). THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND BLACK INK, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY BLACK INK AND CUSTOMER OF THE ORDER FORM (THIS “AGREEMENT”).
a) Access and Availability. Black Ink will make its online, web application specified in the Order Form (the “Services”) available to (a) Customer and (b) individuals who are authorized by Customer to use the Services on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Black Ink at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Black Ink hereby grants the Customer and its Users a limited, revocable, non-exclusive, non-transferrable right to access and use the Services for the Subscription Term for the number of Users specified in the Order Form and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Each User Subscription provides use of Services for a single individual and may not be shared by multiple people. Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Black Ink with respect thereto).
b) Subscription Term. Customer’s initial subscription term for the Services commences on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to Customer to access the Services under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive periods as specified in the initial Order Form (each, a “Renewal Term”). If the parties mutually execute a separate order form for such renewal, in which case (a) the separate mutually executed renewal order form will be deemed to be an addendum to and become part of the “Order Form” for purposes of this Agreement, and will therefore be governed in part by these Terms and will become a part of this Agreement, (b) the renewal term set forth in such separate mutually executed renewal order form will be deemed to be a “Renewal Term” hereunder and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
a) Customer Affiliates. The Subscription is granted solely to the Customer and its authorized Users, and not any other third parties (including not to any of Customer’s Affiliates), except as otherwise set forth in the Order Form. Customer may purchase Subscriptions to the Services for Affiliates or third parties to access Customer Data, provided that if any Affiliates are granted any right to access or use the Services hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
b) Service Level Agreement and Support. Black Ink will provide the general maintenance services and technical support described in the Service Level Agreement (“SLA”) set forth in Schedule A.
2. Customer Conduct and Use.
a) Customer Data; Upload Restrictions. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Services that would typically be provided in the planning, execution or analysis of marketing programs, as well as all information generated by Users using of the Services (collectively, “Customer Data”). Customer will not upload into the Services any one person’s financial or medical information of any nature, or any personally identifiable information (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, passwords and credit card numbers), and none of the foregoing will be deemed “Customer Data” hereunder, and Customer will remove such information from the Services immediately or, at its reasonable discretion, Black Ink may purge the same from the Services. Black Ink will not use Customer Data except: (i) to provide product functionality for Services hereunder; (ii) to ensure proper configuration and operation of the Services; (iii) to respond to service or technical problems; (iv) to enforce and monitor compliance with this Agreement; or (v) at Customer’s request. Black Ink may also collect data with respect to Customer’s use of the Services and report on such usage in an aggregated and anonymous manner.
b) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Services and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Services. Customer and its Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with the use of the Services, including the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive.
c) Certain Restrictions. Customer and its Users will use the Services for internal business purposes only as contemplated by this Agreement and will not:
- tamper with the security of the Services or Black Ink’s other customer accounts;
- attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or wilfully render any part of the Services unusable;
- access data on the Services not intended for the Customer or log into a server or account on the Services that Customer is not authorized to access;
- lease, distribute, (sub)license, sell or otherwise commercially exploit the Services, use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Services (including any evaluation version) available to a third party other than as contemplated in this Agreement;
- allow any third party that offers or provides services that are competitive with Black Ink’s products or services to use or access the Services, use or access the Services to develop a product or service that is competitive with Black Ink’s products or services or otherwise copy any ideas, features, functions or graphics of the Services;
- reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Services, or modify or create a derivative work of the Services or any related documentation;
- remove or obscure any product identification, proprietary, copyright or other notices contained in the Services or related documentation;
- create any link to the Services or frame or mirror any content contained or accessible from the Services; or
- disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Services (including benchmark tests).
d) Customer Content. Customer will be responsible for the content of all Customer Data and communications using the Services. Customer will not use the Services for any content that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Black Ink will use reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
e) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Black Ink’s other rights and remedies, Black Ink may immediately suspend Customer’s access to the Services, without relief of Customer’s financial obligations hereunder, until such breach is cured.
a) Scope. “Confidential Information” means all information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Order Form are Confidential Information of Black Ink.
b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
c) Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. Fees; Interest; Taxes. Customer will pay to Black Ink all of the fees specified in the Order Form, in United States currency, unless otherwise specified in the Order Form. Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service. Fees for additional Services that may be activated either by the Customer or Black Ink, at the Customer’s request, will be charged in accordance with the rates specified in the Order Form. All payment obligations are non-cancellable. Except as expressly set forth in this Agreement, all amounts paid Black Ink are non-refundable. Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within thirty (30) days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Black Ink. Customer will not withhold any Taxes from any amounts due Black Ink. If Black Ink pays any such taxes on behalf of Customer, Customer will reimburse Black Ink for such payments.
5. Proprietary Rights.
a) Customer is permitted to access and use the Services, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Services contains copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Black Ink’s licensors. Black Ink and Black Ink’s licensors solely and exclusively retain all right, title and interest in and to the Services and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Black Ink IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in or to the Black Ink IP.
b) If Customer submits any ideas, content, suggestions, information or feedback relating to the Services (“Suggestions”), then Customer hereby assigns, transfers and conveys to Black Ink, all worldwide right, title and interest in and to all intellectual property rights in any Suggestions, all contract and licensing rights, and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. Customer represents and warrants that to the best of its knowledge (a) Customer is the sole owner of any intellectual property rights in the Suggestion(s); (b) Customer has the full and exclusive right to convey the entire interest in and to its Suggestion(s); and (c) Customer’s Suggestion(s) do not infringe any copyright, trade secret, patent or other intellectual property right. Customer agrees to cooperate with and assist Black Ink, at Black Ink’s expense, in obtaining, sustaining, enforcing and enjoying to the fullest extent all right, title and interest conveyed herein.
6. Term and Termination.
a) Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Order Form, this Agreement may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2 of these Terms; or (ii) by Black Ink pursuant to Section 9(a); or (iii) by Customer as provided under the SLA.
b) Outstanding Fees. Customer will pay all fees owed to Black Ink that have accrued up until termination of this Agreement immediately upon such termination. In addition, if Black Ink terminates this Agreement pursuant to clause (i) of Section 6(a), Customer will pay Black Ink, within thirty (30) days after termination, all unpaid amounts that would have been owed to Black Ink for the remainder of the then-current Subscription Term absent early termination. However, if Customer terminates this Agreement pursuant to Section 6(a), Black Ink will refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination.
c) Effect of Termination. Upon any termination of this Agreement, Customer will immediately cease all use of and access to the Services and delete (or, at Black Ink’s request, return) all related documentation, passwords and access codes and any other Black Ink Confidential Information in its possession. Black Ink will have no liability for any suspension or termination of Customer’s access to the Services, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within thirty (30) days after termination, Black Ink will provide Customer with temporary access to the Services solely for Customer to retrieve its Customer Data, but not any other purpose. After such 30-day period, Black Ink will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control. Sections 3, 4, 5, 6, 7(a), 7(c), 8, 9 and 10 of these Terms will survive any termination or expiration of this Agreement.
a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms).
b) Functionality Warranty. Black Ink warrants that the Services will operate in substantial conformity with the then current version of the applicable documentation provided by Black Ink.
c) Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B), (I) THE SERVICES, SUBSCRIPTION AND SERVICES ARE PROVIDED “AS IS”, AND (II) BLACK INK, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. BLACK INK AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED, (D) THE SERVICES OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF (INCLUDING ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING), WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. BLACK INK AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
8. Limitations of Liability. Add third party beneficiaries EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL BLACK INK BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES (INCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION AND (II) ONE HUNDRED THOUSAND U.S. DOLLARS (US$100,000). BLACK INK’S LICENSORS DISCLAIM ALL LIABILITY TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT. EXCEPT WITH RESPECT TO ENFORCING CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR A BREACH OF SECTION 2 OR 3, NO ACTION AGAINST EITHER PARTY ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY THE OTHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. THIS SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. Mutual Indemnification.
a) Black Ink Indemnification. Black Ink will indemnify, defend and hold harmless Customer against any loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer alleging that the use of the Services, as contemplated hereunder, infringes the patents or copyrights of a third party in the United States or Canada. Notwithstanding the foregoing, if Black Ink reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Black Ink may, at its expense and in its sole discretion: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Black Ink’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Black Ink may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Black Ink will not apply: (1) if the Services is modified by any party other than Black Ink, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services is combined with other non-Black Ink products, applications, or processes not authorized by Black Ink, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any third party deliverables or components contained within the Services that are not provided by Black Ink; or (5) to any action arising as a result of the Customer Data. THIS SECTION 9(a) SETS FORTH Black Ink’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
b) Customer Indemnification. Customer will indemnify, defend and hold Black Ink and its Affiliates, and their officers, directors, employees, agents and contractors (“Black Ink Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Black Ink Indemnitees arising from or relating to use of Customer Data or other use of the Services, in each case except to the extent Black Ink is obligated to indemnify Customer under Section 9(a).
c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10. General Provisions.
a) Entire Agreement; Interpretation. This Agreement (which consists of the Order Form and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Services described in the Order Form, and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of these Terms and the Order Form, the terms of the Order Form will govern. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Black Ink ordering document, and no terms included in any Customer purchase order or other non-Black Ink ordering document will apply to the Customer’s Subscription or use of the Services. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
b) Marketing. Except as provided for in the Order Form, neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
c) Relationship of Customer and Black Ink. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
d) Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that Black Ink may assign this Agreement without the consent of Customer to a corporation or other business entity succeeding to all or substantially all of the assets or business of Black Ink to which this Agreement relates, whether by merger or purchase.
f) Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
g) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Black Ink will be sent to the address for Black Ink set forth in the Order Form and addressed to the Office Manager, with a copy to the President. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer.
h) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
i) Facsimile Transmission/Counterparts/Electronic Signatures. This Agreement will be deemed executed upon mutual execution of the Order Form, which may be executed and delivered by facsimile or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
j) Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
k) Subcontractors. Black Ink may use the services of subcontractors for the provision of any Services and performance of any services under this Agreement.