BLACKLEAF SOLUTIONS, LLC TERMS OF SERVICE AGREEMENT

This Terms of Service Agreement (“Agreement”) is entered into between Blackleaf Solutions LLC (“Provider”) and any individual or entity (“Customer”) who requests, utilizes, or accepts Services provided by the Provider (collectively referred to as the “Parties”). By requesting, utilizing, or accepting Services from the Provider, the Client agrees to be bound by the terms and conditions set forth in this Agreement. This Agreement, as amended from time to time by Provider, unless otherwise agreed in writing, shall apply to all current and future transactions between Company and Client.

1. Scope of Services.

1.1 The Provider agrees to provide the services requested by Customer (“Services”), as described on its website, promotional materials, or any other communication channels, such Services may include but are not limited to managed IT services, network monitoring, hardware and software maintenance, data backup, security, EDI services, Provider owned, Blackleaf Connect software (“Software”) and technical support.

1.2 Unless otherwise agreed upon, all Services performed by the Provider shall be performed on a time and material basis.

2. Compensation.

2.1 In consideration of the Services provided by the Provider, the Customer agrees to pay the fees as outlined in the Provider’s quoted pricing or as communicated through a separate agreement (“Fees”). Unless otherwise agreed upon, the Customer shall make payment in accordance with the following terms:

2.1.1 Standard Time and Materials services are billed at the Provider’s then current hourly rates, in fifteen (15) minute increments, and due upon receipt.

2.1.2 Emergency/Off-hours Time and Materials services are billed at the Provider’s then current hourly rates, in fifteen (15) minute increments, subject to a per-call service fee, and due upon receipt.

2.1.3 Equipment Purchases are to be paid upon order placement.

2.1.4 Non-subscription Software is to be paid for upon order placement.

2.1.5 Subscription Software Licensing & Services are due prior to the start of the service period.

2.2 The Provider reserves the right to modify the Fees upon notice to the Customer. Any Fee changes will be communicated in writing and shall become effective upon the next billing cycle.

2.3 Interest will accrue, immediately, in the amount of eighteen percent (18%), on any amount not paid in accordance with this Agreement. Customer agrees to pay any reasonable costs, including, but not limited to, reasonable attorney’s fees agreed to be no less than twenty-five (25%) of any amount due and owing), expert witness fees and court costs, incurred by the Provider to collect any amount unpaid under this Agreement.

2.4 Customer must contact Provider in writing no later than seven (7) days after the billing date to report a billing error. All Fees are stated in United States currency, as the case may be, and are exclusive of applicable federal sales and goods and services taxes. Customer shall be responsible for the payment of any taxes applicable to the products and Services provided under this Agreement.

3. Term and Termination

3.1 This Agreement shall commence upon the Customer’s request, utilization, or acceptance of Services from the Provider and shall remain in effect until the end of the term set forth in the quote or other written document between the Parties or as terminated by either Party as provided herein.

3.2 Either Party may terminate this Agreement upon written notice to the other Party. In the event of termination, the Customer shall be responsible for paying any outstanding Fees owed to the Provider for the remainder of the term set forth in the quote or other written agreement between the Parties, if any.

3.3 The Provider reserves the right to suspend or terminate Services immediately, without notice, if the Customer violates any terms of this Agreement or engages in any activities that may compromise the security or integrity of the Provider’s systems or networks.

3.4 Termination by Customer. Customer may terminate this Agreement if Provider commits a material breach of this Agreement and fails to cure the breach within a reasonable cure period.

3.5 Duties on Termination. Upon termination of this Agreement, the rights granted hereunder shall immediately terminate and be of no further force or effect. If this Agreement is terminated for any reason by either Provider or Customer, Customer shall not be entitled to a refund of any Fees paid prior to the date of termination. Customer shall also be liable for any unpaid Fees due for Services performed prior to the effective date of termination and any Fees which would be due for the remainder of the term set forth in the quote or other written agreement between the Parties, if any. All such Fees shall be due within five (5) days of invoice. Upon termination of this Agreement, Provider shall remove and prohibit Customer’s further access to the Software and Services, and the Customer shall promptly cease using and shall return all tangible software, if any (which includes without limitation all improvements & documentation). Upon termination as permitted by this Agreement, Provider reserves the right to erase or remove any Customer Data stored on Provider’s systems without prior notification and without retaining a copy of such Customer Data.

4. Customer Obligations.

Customer agrees to provide Provider:

4.1 all security rights, and hereby grants Provider remote access to all Customer systems, as deemed necessary by Provider in order to carry out the Services;

4.2 the necessary authority for Provider to interact with all Customer vendors, as may be deemed necessary from time to time by Provider in order to carry out the Services;

4.3 the necessary access of Customer key personnel, including stakeholders, subject matter experts and technical resources as Provider may deem necessary from time to time in order to carry out the Services;

4.4 Customer shall be responsible for its systems which are needed in order for Provider to provide the Services hereunder, and for assuring proper machine configuration, program installation, operating system release level, audit controls and operating methods, including an uninterrupted power supply; establishing adequate backup plans for all Customer Data based on independent alternate procedures, and/or based on access to qualified programming personnel to diagnose, patch, and repair the defects in the event of any malfunctions;

4.5 Customer shall be responsible for implementing sufficient procedure and checkpoints to satisfy Customer’s requirements for security and accuracy of input and output, as well as restart and recovery in the event of a malfunction or loss of data. Customer is solely responsible for backing up all Customer Data.

5. Third Party Software Rights and Use.

5.1 Provider may use certain third-party software from time to time as deemed necessary in Provider’s sole opinion or as may be requested by Customer. If third party software or data is included in or with the Services, such software or data are provided subject to sperate license agreements and the terms and limitations of the third-party vendor, licensor, or contractor. Customer shall pay to Provider all license fees assessed by any third party for use of the third-party software. In the alternative if Customer has a fully paid license for the third-party software, Customer shall submit to Provider proof of such payment and the right for Provider to install the third-party software on the Customer’s systems.

6. Cooperation with Third-Parties.

6.1 Provider hereby acknowledges that Customer may, in its sole discretion, engage other persons or firms (including, without limitation, Customer employees) to perform services or work similar or related to the Services, or to perform some or all of Customer’s responsibilities under this Agreement. Provider agrees to cooperate as requested by Customer with such other persons or firms to coordinate the provision of Services for or on behalf of Customer. Such coordination shall include, but not be limited to: (a) facilitating with such other relevant service providers the timely resolution of all problems that may arise and impact the Services or the provision thereof, regardless of the actual or suspected root-cause of such problems; (b) providing information concerning the Software or Services to such other service providers; and (c) taking direction from such other persons or firms as if such direction was from Customer itself.

7. Customer Restrictions.

7.1 Customer will not: (i) reverse engineer, decompile, disassemble, modify, alter or otherwise attempt to derive the source code form or structure of the Software or any other software used in the Services, in whole or in part; (ii) provide, sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Software or Services to any third party, except as expressly authorized hereunder; (iii) create a derivative work of any part of the Software or Services; or (iv) intentionally use the Software or Services for any unlawful purpose. If Customer is merged, consolidated or sold, or if Customer sells or transfers all or substantially all of its assets relating to the use of the Software, Customer shall have the right to transfer its rights and obligations under this Agreement to the surviving or buying entity, provided that Customer shall not be relieved of its obligations hereunder, the successor must assume the terms and conditions of this Agreement in a manner acceptable to Provider, and the scope of use of the Software may not be not substantially altered.

8. Data Security/Confidential Information.

8.1 Provider represents that, during the Term of this Agreement, Provider will take reasonable security measures, and other safeguards, designed to (i) ensure the security and confidentiality of the Customer Information, (ii) prevent a breach or malicious code infection and protect against any anticipated threats or hazards to the security or integrity of the Customer Information, (iii) protect against the unauthorized or unlawful access, use, monitoring, processing, or disclosure, and the unlawful or accidental alteration, destruction, loss, or damage of any Customer Information being processed by, stored by, or transmitted to and from, Provider.
Customer Information shall mean any data or information that Customer deems confidential or proprietary including, without limitation, (a) existing and/or contemplated products and services, software, data systems, computer programs, technical information, or other related information; (b) proprietary ideas, patentable ideas, copyrights, trade secrets, inventions, discoveries, processes, methods; (c) research and development, production, costs, profit and margin information, finances and financial projections, marketing, performance, sales, technical data, marketing information, operating information, business pricing policies, programs and current or future business plans, methods, practices and models; (d) customers, clients, suppliers, employee/personnel information, payroll policies, and salary information.
Provider agrees to protect the confidentiality of Customer Information with the same standard of care which it uses to protect its own most valuable trade secrets and proprietary information, but in no event, less than reasonable care, and Provider shall not use or disclose the Customer Information except as is necessary to carry out the Services hereunder and except as otherwise approved by Customer.

9. Proprietary Rights.

9.1 Reservation of Rights by Provider. Customer acknowledges and agrees that the Software and all other Provider technology and data associated with the Services, the design, format and processing of the Services, the database, programs, protocols, displays, and manuals relating to services network (including any and all Improvements thereto), Provider’s Software, and Provider’s name and logos are owned by Provider and protected as Provider’s intellectual property. During the Term of this Agreement, Customer agrees not to challenge Provider’s ownership and rights in any such intellectual property. Customer agrees to keep the foregoing information and features confidential through reasonable security precautions, to use and disclose the same only as necessary for Customer’s internal use of the Services, and not to make any copies thereof except as necessary to use the Services. This Agreement does not provide Customer with title or ownership of the Software or Services, but only a right of limited use and the license set forth herein. No rights are granted to Customer hereunder other than the limited access rights expressly set forth herein.

9.2 Ownership of Improvements. Should Provider, or should Customer request Provider, make any Improvements to the Software or Services, by any means or any media, any ideas, concepts or techniques for new or improved services and products, whether as information, feedback, data, questions, comments, suggestions or the like, all such Improvements shall be owned solely by Provider and Provider shall have the right to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind, without obligation to account for or share revenue or profits, the Improvements. “Improvement” shall mean any enhancement, modification, alteration, improvement, correction, revision, and other changes to the Software and Services, including but not limited to updates made after the term hereof which Provider generally makes available for the Services at no additional fee.

9.3 Provider Confidential Information. Customer acknowledges that the confidential information provided by Provider is protected hereunder and is of significant importance to Provider and that, in the event of the unauthorized use or disclosure of such confidential information, Provider may not be adequately or reasonably compensated for the loss through damages available in an action at law. Customer therefore agrees that in the event of any such unauthorized use disclosure, Provider shall be entitled to obtain injunctive and other equitable relief to enforce these requirements and prevent further violation, and Customer agrees to waive any obligation that bond be posted by Provider in connection with such relief. Resort to such equitable relief shall not be construed, however, to be a waiver of any other rights or remedies that Provider may have for the same or any other violation of its intellectual property rights.

9.4 Proprietary Rights of Customer. Customer owns and shall continue to own all rights, title and interest in and to the Customer Content and Customer Data. Provider does not have any right or interest, including, without limitation, intellectual property rights, in the Customer Content or Customer Data except as expressly provided for in this Agreement. Provider does not acquire and may not claim any lien, encumbrance, or other security interest in any Customer Content or Customer Data. “Customer Content” is any and all content or materials and all copies thereof, regardless of the form or media provided by Customer or its Affiliates to Provider under this Agreement, including but not limited to trademarks, service marks, logos, insignia, trade names and other designations of origin of Customer and its Affiliates, text, graphics, Customer software, third-party software, music or other material in any form or media. “Customer Data” means any or all of the following, and all copies thereof, regardless of the form or media in which such items are held: (a) personally identifiable information of Customer; (b) any data and/or information provided or submitted by or on behalf of Customer to Provider; and (c) any data and/or information stored, recorded, processed, created, derived or generated by Provider and any related output as a result of and/or as part of the Services.

10. Warranties.

10.1 Provider represents and warrants: (i) the Services and any resulting deliverables do not infringe on any third-party intellectual property rights; (ii) that it has the right to license and has licensed any third-party software necessary to carry out the Services contemplated hereunder. In the event Customer pays any third-party product license fees, Provider represents and warrants that, during the term of the applicable Services, Provider shall maintain in-force any third-party product agreements with respect to any such software incorporated or used by Provider in performing the Services.

10.2 THE SOFTWARE AND SERIVCES ARE PROVIDED ON AN “AS IS” BASIS EXCEPT AS EXPLICITLY STATED HEREIN, PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT, AND/OR ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE SERVICES OR THAT CUSTOMER DATA WILL NOT BE DESTROYED, LOST, INTERCEPTED, OR ALTERED BY UNAUTHORIZED PERSONS. PROVIDER DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE SERVICES WILL BE UNINTERRUPTED, OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO CUSTOMER DATA.

10.3 Third Party Software/Services Warranty. Provider makes no warranties or representations about the adequacy or performance of any third-party software or services, all such warranties on third party services and software are limited to any warranty obligations that the third party may have to Provider which are for the benefit of the Customer. Any warranty claim shall be solely between Customer and the third party. Provider does not warrant that such third-party software or services are adequate for Customer’s individual security needs.

11. Limitation of Liability.

11.1 Provider’s cumulative liability to Customer or any other party for any loss or damages resulting from any claims, demands or actions arising out of or relating to this Agreement shall not exceed the Fees paid to Provider under this Agreement for the immediately preceding twelve (12) month period. To the extent allowable by law, in no event shall Provider be liable TO CUSTOMER OR ANY OTHER PARTY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES INCLUDING MALFUNCTIONS, DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS FOR ANY CAUSE OF ACTION UNDER OR RELATING TO THIS AGREEMENT, THE PERFORMANCE OR BREACH THEREOF, OR OTHERWISE, including i) the use of the Provider’s hosting services, ii) errors, defects, omissions, delays in operation or transmission, or any other failure of the Services or Software or any third party service or software; iii) any unauthorized access to or alteration of Customer data or transmission thereof; 4) any failure of third party services to provide security protection to Customer Data and information, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Provider further assumes no responsibly for the failure of any third-party services or software and further assumes no responsibility or liability for the timeliness, deletion, mis-delivery or failure to store any Customer Data or information.

12. Indemnification

12.1 Provider Indemnification. If an infringement claim or action occurs, or in Provider’s judgment is likely to occur, Provider shall, at its option and sole expense, either: (a) procure for Customer the right to continue using the Software or Services; (b) modify such Software or Services to become non-infringing provided that such modification is equally suitable, compatible, and functionally equivalent to the original Services; (c) replace Software or Services with an equally suitable, compatible and functionally equivalent non-infringing software; or (d) terminate this Agreement and Customer’s right to use the Software and Services and refund to Customer any unused pre-paid Fees as of the date of termination. Provider’s obligations hereunder are conditioned on (i) Customer notifying Provider promptly in writing of such claim; (ii) Customer giving Provider sole control of the defense of all such claims and any related settlement negotiations; and (iii) Customer co-operating with Provider in such defense (including, without limitation, by making available to Provider all documents and information in Customer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Customer’s personnel available to testify or consult with Provider or its legal advisers in connection with such defense). If Customer settles any such claim without Provider’s prior written approval, Provider shall be relieved of all liability with respect to such claim. Notwithstanding the foregoing, Provider shall have no liability or obligation with respect to any infringement or misappropriation claim based upon: (i) any use of the Software or Services not in accordance with this Agreement or for purposes not intended by Provider; or (ii) any modification of the Software or Services by any person other than Provider where such modification is not authorized by Provider.

12.2 Customer Indemnification. Customer agrees to defend, indemnify and hold Provider, its parent, subsidiaries, officers, directors, members, employees, contractors, successors and assigns harmless from any claim, demand, damages, costs and expenses (including reasonable legal fees), arising from any third party claim against Provider due to or arising out of: (i) any use of the Software or Services by Customer, its affiliates, employees agents, successors and assigns other than in accordance with this Agreement; (ii) any breach of this Agreement by Customer, its affiliates, employees agents, successors and assigns; and (iii) any unauthorized use or modification of the Software or Services by Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.

13. Independent Contractor

13.1 It is the intention of the parties that Provider, and its employees and agents, be an independent contractor and not an employee, agent, joint venturer, or partner of Customer. Neither Party shall have the right or authority to legally bind the other in any manner. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Provider or any employee or agent of Provider. Provider shall retain the right to perform work for others during the term of this Agreement and thereafter.

14. Miscellaneous

14.1 Governing Law. This Agreement shall be interpreted, construed, and governed in accordance with the laws of the State of Maryland. Each of the parties hereto hereby submit to the exclusive jurisdiction of the courts of the State of Maryland in any suit, hearing or other legal proceeding of every nature, kind and description whatsoever in the event of any dispute or controversy arising hereunder or relating hereto, or in the event any ruling, finding or other legal determination is required or desired hereunder including any proceeding for the enforcement of this Agreement.

14.2 Attorneys’ Fees/Costs of Litigation. If any action is brought by either party to this agreement regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys’ fees, expert witness fees, and costs incurred in any litigation.

14.3 Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. Any provisions which by their terms and conditions contemplate survival of the expiration of the term of this Agreement, or any earlier termination of this Agreement, shall survive such expiration or earlier termination.

14.4 No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

14.5 Binding Effect; No Third-Party Beneficiaries. This Agreement shall be binding upon, and inure to the benefit of, the legal successors. Nothing in this Agreement shall be construed as granting to any person whatsoever other than the parties hereto, and their respective successors and permitted assigns, any remedy, claim or other privilege or right under or in respect of this Agreement or any provision hereof.

Blackleaf Connect / EDI Services

In addition to the above, the following conditions apply as related to Blackleaf Connect and/or EDI Services provided:

1. Scope of Services

1.1 Provider will provide Electronic Data Interchange (EDI) services to the Customer through the Blackleaf Connect web portal. These services include, but are not limited to, document interchange, pricing catalog updates, order fulfillment, inventory management, and invoice processing.

1.2 Access to the Blackleaf Connect web portal will be controlled by a secure login procedure and is for the sole use of the Client.

1.3 Customers will be required to accept an End User License Agreement (EULA) which may subject them to additional terms and conditions.

1.4 Sharing of login credentials is strictly prohibited.

2. Authorized Agent

2.1 Customer agrees to appoint Provider as Authorized Agent and Representative, granting its staff to interact with the Customer’s vendors on behalf of the Customer as related to providing aforementioned Services.

2.2 As necessary, Customer will establish login, credentials for vendor websites for use by Provider.

3. System Integration

3.1 Provider will connect and distribute data to Customer third-party systems via API or other technology “Endpoints” as available.

3.2 Customer acknowledges that changes to established Endpoints may cause issues such as downtime, data corruption, and loss of data. Troubleshooting and correcting these issues may require development effort for which the Customer may be liable, at the discretion of the Provider.

3.3 Customer agrees to notify Provider, in advance, of any known systemic changes related to connected Endpoints.

4. Data Integrity

4.1 The Provider will take all reasonable precautions to maintain the integrity of the data transferred through the EDI system. However, it is the responsibility of the Customer to verify the accuracy of all transactions and data received.

4.2 Customer acknowledges that data received by the Provider from the Customer’s distributors is “As is”. Provider makes no warranties related to the state, content, or validity of information received from Customer distributors.

5. Maintenance & Support

Provider shall provide support to Customer upon request. All support requests shall be submitted to Provider via email to Support@BlackleafConnect.com, or through other means designated by the Provider. Provider shall provide a response to a support request, with intent to resolve the request, within twenty-four (24) hours of receipt.

6. Additional Provisions

6.1 During the Term of the Agreement, certain cloud hosting services may be provided to Customer by a third-party. Customer agrees to abide by all third-party terms and conditions. Provider is not responsible for Customer’s adherence to those terms.

6.2 Customer shall ensure that all times Customer has adequate firewall protection and related security measures in place in order to secure the Customer’s data from unauthorized access or use. Provider is not responsible for Customer’s failure to effectively protect its data from unauthorized access.

Last Updated: 5/26/2023