TERMS AND CONDITIONS OF USE
1. The Program. It is the desire of the Client to engage the services of Black Dragon CRM (herein “CRM”) for the following:
- License to use online version of CRM
- Management of Payment Gateway and Transactions Processed
- Management of ACH Processing Services
- Software Training
- Technical Support
2. License. Client shall have a limited license to use the proprietary, trade secret software of CRM so long as Client continues to make timely payment of fees under this Agreement. CRM is the sole owner of this proprietary software and nothing in this Agreement shall provide Client with an ownership interest or intellectual property rights in the software it uses.
3. Term. Client commits to an initial one (1) month term for the license of CRM, unless terminated sooner pursuant hereto. After this initial term, this Agreement shall automatically renew for successive one (1) month terms unless either Party gives notice to the other Party of its intention not to renew this Agreement at least thirty (30) days prior to the end of the initial term or any successive renewal term.
4. Payment Terms.
- Client shall pay to CRM the fees set forth in the Enrollment Form (“Fees”), which is incorporated herein by reference.
- CRM will bill the Client on the first business day of each month for all Fees owing per the Enrollment Form and as set forth in this Agreement. If Fees accrue to more than $50.00 at any time in any given month, CRM will bill the Client the full amount due on a more frequent basis at CRM’s discretion. If this Agreement is terminated for any reason, Client shall be required to pay to CRM the monthly average of the amount of Fees and all other amounts otherwise due to CRM under Section 3 multiplied by the number of months remaining for the initial term or the applicable renewal term.
- Any amounts not paid by Client when due will be subject to a finance charge equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the due date until the date paid. Payment of such finance charges will not excuse or cure any breach or default for late payment. If Client has not paid all owing amounts on or before the last business day of the month in which they were due, CRM may, in its sole discretion and in addition to all other rights terminate all links, CRM services or other services provided to Client. Unless CRM has already terminated the Agreement, if Client subsequently pays in full all owing Fees and charges, including attorneys’ fees and other legal expenses incurred by or on behalf of CRM in connection with collection of any unpaid charges and fees and a twenty five dollar ($25) reactivation fee, CRM agrees to restore Client’s ability to use CRM’s services, upon receipt of such payment.
- Client hereby authorizes and instructs CRM to debit the Fees via ACH/EFT automated transfers from the Client’s bank account as designated by the Client. CRM will initiate and debit Client’s bank deposit account(s) for the Fees due and payable to CRM. CRM reserves the right, at its sole discretion, to delay billing of Fees and charges hereunder. If payment of the Fees are not timely received by CRM from Client’s bank deposit account(s). Fees do not include, without limitation any service fees currently paid to or payable to providers of Client Services, Client Processors, or parties affiliated or related thereto. This Agreement at no time substitutes or invalidates any existing agreements between Client and any third party.
5. Representations/Warranties. Client hereby represents and warrants that: (i) the person or entity executing this Agreement has the full authority, right and power to enter into and execute this Agreement; (ii) Client’s performance under this Agreement does not and shall not violate: (1) any statutory, legal, or contractual duties and/or obligation Client may have; and (2) any federal or state laws or regulations applicable to CRM or Client; and (iii) Client agrees to comply with all rules, regulations, policies and/or procedures of VISA, MasterCard, NACHA, any federal or state department or agency having jurisdiction over the activities, conduct, actions, or representations made by CRM or Client.
6. Termination. This Agreement may be terminated by: (i) by CRM if Client fails to abide by its representations and warranties as set forth herein; (ii) by CRM if CRM determines in its sole discretion that its business reputation is negatively impacted by Client or Client’s conduct; (iii) by CRM if Client becomes insolvent, is dissolved or liquidated, makes a general assignment of the benefit of its creditors, files or has filed against it a petition of bankruptcy, or has a receiver appointed for a substantial part of its assets; (iv) by either Party if the other Party has committed a material breach of this Agreement and such breach has not been cured within thirty (30) days of receipt of a written notice of such breach; and/or (v) the express mutual written consent of both Parties.
7. Limited Liability. Except for (i) fraud and (ii) willful misconduct (excluding acts constituting a breach of this Agreement), CRM’s liability shall be limited to the actual aggregate amount of the Fees and other amounts paid by Client to CRM under Section 3 of this Agreement, less the aggregate of CRM’s actual third party expenses. In any action which may be brought or prosecuted under the statute or otherwise, and not prohibited or waived by the terms of this Section, neither Party shall be liable to the other Party for indirect, special, incidental or consequential damages (including, without limitation, lost profits, revenues or data) of any nature. At no time will CRM be held liable for any Transaction submitted by Client that does not fall under Client’s standard operations or charged through Client Processor’s account or process for or by a business entity other than Client.
8. Indemnity. Client agrees to indemnify CRM and hold CRM harmless from and against any and all liabilities, damages, costs, or expenses (including reasonable attorney’s fees) claimed by any third party while CRM is performing Services in accordance with the terms of this Agreement, provided, however, said liability, damage, expense, or cost was not the result of any act or omission of CRM.
9. Confidentiality. Client acknowledges that during the course of performing this Agreement, Client will be privy to Confidential Information (“Confidential Information” shall include, without limitation, data, information, merchant lists, accounts, records, agents, referral sources, vendors, employees, contractors, banking relationships, cost and expense data, marketing and customer data, sales manuals, protocols, management policies and procedures, quality assurance policies and procedures, CRM’s policies and manuals, documentation of processes, software, applications, designs, devices, compilations of information, symbols, service marks, logos, customer and vendor lists, marketing programs, plans, and strategies, research and development plans, contracts and licenses, licensing techniques and practices, advertising and promotional materials, financial information, models and strategies, security controls, and other confidential information owned by or used in the business of Company, assigns, parent, subsidiaries or affiliates). Client hereby agrees that it will:
- Hold and maintain the Confidential Information in strict confidence and in trust for the sole benefit of CRM and not utilize the Confidential Information for Client’s own benefit to the exclusion of CRM.
- Restrict access to the Confidential Information to persons bound by this Agreement and take all necessary action to protect the confidentiality of the Confidential Information
- Obtain the prior written approval of CRM before using the Confidential Information for its own benefit, or publishing or otherwise disclosing it to others, or permitting others to use it for their benefit or to the detriment of the other party.
The obligations under this Section 9 do not extend to information that is: (1) generally known to the public; or (2) discovered or created by Client independent of any involvement with CRM or the Confidential Information, or learned by Client through legitimate means other than from CRM.
10. Choice of Law/Enforcement/Jurisdiction. This Agreement shall be governed by the laws of the State of Nevada, without giving effect to any choice or conflict of law provision or rule (whether the State of Nevada or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Nevada. Client and CRM agree that this Agreement was negotiated and executed in Las Vegas, Nevada, and is to be performed in Las Vegas, Nevada, and that any action, dispute, or claim between the Parties arising out of or related to this Agreement, shall be heard in Las Vegas, Nevada. Client and CRM further consent to the jurisdiction of the Superior Court of Las Vegas, Nevada and hereby waive any defense of any kind related to jurisdiction or venue. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in that action or proceeding.
11. Severability. If any clause or provision of this Agreement is deemed by competent judicial authority to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity and enforceability of all of the other provisions hereof, and this Agreement may be reformed to make the offensive provision fully enforceable to the fullest.
12. Waiver/Amendments/Assignability. No waiver of a breach hereof shall be deemed to constitute a waiver of a further breach, whether of a similar or dissimilar nature. All amendments or modifications of the parties to this Agreement must be in writing and signed by the parties. This Agreement may not be assigned by Client without the express written consent of CRM. Client understands that the same restriction shall not apply to CRM.
13. Entire Agreement. This Agreement, together with its applicable Enrollment Form and any financial addendum of the parties, embodies and constitutes the sole and entire understanding and agreement of the parties relative to the subject matter hereof and governs and supersedes all prior representations, understandings and agreements as between the parties respecting the within subject matter.
14. Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, e-mail, telegram, or recognized commercial over-night delivery service and shall be deemed given within forty-eight (48) hours with receipt of delivery.