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Master Terms

These master terms and conditions (“Master Terms”) apply to the brand-management services, which may include procurement, warehousing, storage, printing and shipment services and design and creative-service projects, provided either offline or online through the cloud-based digital platform available through www.blinkswag.com (“Platform”) and the related software-as-a-service functionality available through the Platform (collectively, the “Services”) offered by Blink Swag, a division of Blink Marketing Inc, an Ohio corporation (“Blink”, “we”, “us”, or “our”). These Master Terms govern the relationship between you or your business (“you” or “your”) and us with respect to the Services. Additional terms and conditions, including agreements and policies available on or through the Platform, may also apply to specific Services, including specific portions, services, or features of the Services (“Additional Terms”, and together with these Master Terms, the “MSA”). Additional Terms may be included as part of a separate contract between us or included in your order submission, proposal, or scope of work. All Additional Terms are hereby incorporated by this reference into these Master Terms. In the event of any conflict or inconsistency between the Master Terms and any Additional Terms, these Master Terms will govern and control unless the Additional Terms expressly state otherwise. The Master Terms are effective as between you and us upon the date that you sign or electronically agree and submit to us the Master Terms and our acceptance of the same (“Effective Date”). The Additional Terms are effective as between you and us upon your signing or electronically agreeing and submitting to us Additional Terms and our acceptance of the same. Capitalized terms have the meaning ascribed to them in and throughout these Master Terms.


Services

Subject to and conditioned on your compliance with the terms of the MSA, during the Services Term (as defined in Section 16), we will use commercially reasonable efforts to provide you with access to and use of the Services. We may modify, remove, add, or enhance features of any Service in our sole discretion from time to time.


Users and Representatives

An account may be required to access and use some of the Services or functionalities, and the Services and functionalities available may vary based on the type of account. You may authorize your and your affiliates’ employees, contractors and agents (“Users”) to use certain Services requiring an account, provided that each User accessing the Services must have its own account access credentials, and you agree not to allow or authorize anyone other than the applicable User to use such account access credentials. You are solely responsible for all activities conducted by each User and for each User’s compliance with the MSA. We have no liability or responsibility of any kind and are not responsible or liable for any loss, delay or failure attributable to you or to any User.


Third-Party Products 

We may from time to time make certain applications, products, services, materials, data information and content not owned by us available in connection with the Services (“Third-Party Products”). Any use by you or a User of any Third Party Product is subject to the terms and conditions applicable to such Third Party Product. We make no representation or warranty as to any Third Party Product.


Content and Documentation 

As part of the Services, you may receive or be provided access to (i) documents, information, materials and content of ours or which is obtained by us from third-parties (“Content”), (ii) documents, information, materials and content prepared or commissioned by us that describe any Service or the functionality, components, features, requirements or use of any Service or any aspect of the Services (“Documentation”), (iii) certain work product, including documents, materials, designs and/or written copy, requested by you (“Deliverables”, and collectively with “Content” and “Documentation”, “Materials”). Your use or approval of any Materials, or any other information or recommendations we provide or make available to you is at your sole discretion and you agree that we will not be liable for the consequence of such use.


Intellectual Property 

Subject to and conditioned on your compliance with the terms of the MSA, we will grant you a limited right to access and use the Services, including the Platform and Material of ours, during the applicable Service Term, and the Deliverables, during and after the applicable Service Term, in each case solely for your personal or business purposes by you and the Users. All right, title and interest, including all intellectual property rights under or related to any intellectual property right laws or similar protections at any time (“IP Rights”), in or with respect to any of the Services, including the Platform, any Material, Processed Data (as defined below) and Third-Party Products, are and will remain with us or the respective rights holder, as applicable. All technology, works, inventions, content, information, materials and data developed by us are and will remain with us, unless we expressly agree otherwise. You unconditionally and irrevocably assign, transfer and grant to us an assignment of all right, title and interest in and to (i) all suggestions, ideas, enhancement requests, or other feedback provided by you or any User relating to the Services, and (ii) all content, information, materials or data that is derived by or through the Services or as a result of providing or making available the Services from processing Your Data (as defined in Section 6), including all related IP Rights (“Processed Data”). You agree that all rights in and to any Deliverables (except for Your Data and related IP Rights in Your Data) are retained by Blink; we reserve the right to use any Deliverables as sample work for advertising and promotional purposes and for internal purposes and you irrevocably grant us all rights and licenses necessary or useful for us to benefit from the foregoing. We may assign, transfer, and sublicense such rights to others without your approval. Except for the limited rights and licenses granted to you under the MSA, we do not grant you any right, title or interest in or to any of the Services or any related IP Rights.


Your Data

Unless specifically permitted by you, you will own, as between you and us, all of the content, information, materials and data, including all IP Rights, that is submitted by you or any User to the Service in the course of accessing or using the Services (“Your Data”). Your Data does not include Processed Data. You represent and warrant to us that you are the rightful owner or rightsholder of Your Data and have all necessary rights and consents in and relating to Your Data so that, as received by us, they do not and will not infringe, misappropriate, or otherwise violate any IP Right or other right of any person. We have no obligation to check or confirm the accuracy or completeness of any content, information, materials or data, including Your Data. You irrevocably grant us all rights and permissions in or relating to Your Data, including all related IP Rights, and any suggestions, ideas, enhancement requests, or other feedback provided by you or any User relating to the Services, as may be necessary or useful for us to provide or make available the Services, fulfill our obligations, and protect our rights, and develop, market, improve and enhance our business. In furtherance of the foregoing, you agree that we may use and publish your name and logo to identify the customer relationship between you and us.


Projects and Deliverables

As part of the Services, you may request that we perform design work or other creative-services projects (“Projects”) and provide you with certain Deliverables. Projects and Deliverables may be subject to Additional Terms. Unless otherwise specified in the Additional Terms, you agree to approve or reject Deliverables within 5 days of receipt and your approval or rejection must be submitted in the same manner that the Deliverables were provided, such as by reply email. You agree not to reject the Deliverables unless they materially fail to conform to the Additional Terms and you agree not to unreasonably withhold your approval. Any rejection of Deliverables must include a reasonably detailed description identifying each material failure. If you fail to properly reject each Deliverable, you will be deemed to have accepted such Deliverable as provided. In the event we resubmit any Deliverable to you for approval and you properly reject that Deliverable in good faith on more than three occasions, either you or us may choose to terminate the applicable project and/or Additional Terms by written notice to the other. This Section 7 sets forth our sole obligation and your exclusive remedy for the failure of any Deliverable to conform to the applicable Additional Terms.


Your Responsibilities 

You agree not to (i) access or use any Service, including the Platform, for any purpose that is unlawful, violates the IP Rights of any person or is not expressly permitted by, or is otherwise a violation of, the terms of the MSA, (ii) sell, resell or lease any Service or any feature of any Service, including the Platform, (iii) attempt to circumvent the security or interfere with the proper working of any Service or the servers on which the Platform is hosted. You further agree to (i) comply with all applicable laws (including laws regarding privacy and protection of personal or consumer information) in connection with your access or use of the Services, (ii) obtain and maintain any equipment, hardware and software as may be necessary for you to access or receive the Services (“Your Systems”), (iii) take reasonable steps to prevent unauthorized access to or use of Your Systems and the Services, including any related access credentials for Users.


Fees and Payment 

You agree to pay all amounts due on time and in full and without deduction. Fees for Services (“Fees”) are set forth in the Additional Terms for such Service. Unless otherwise stated, all payments made are non-refundable and all payment obligations are non-cancellable. Unless expressly stated otherwise, all Fees and all references to “USD” or “$” are to United States Dollars. We may increase the Fees at the end of the Service Term and will notify you in advance of such change. Fees do not include taxes or surcharges that may apply to the Services. Fees may include charges assessed by third parties, including subscription charges, for services furnished by them directly for your benefit in connection with the Services. Unless otherwise set forth in Additional Terms, payments for each Service are due in advance of the start of such Service’s corresponding Services Term (as defined in Section 16). We may charge you a late fee or terminate or suspend or discontinue providing any Service without notice to you if we do not receive your payment by the due date or if your payment is rejected or refused. Even if we suspend or terminate or discontinue providing any Service, you are still responsible for any charges due at the time of such suspension or termination or discontinuation, and you are responsible for all costs of collecting any unpaid amounts you owe us.


Purchases 

Purchase orders may be created by you or Users as part of the Services, including purchases created through the Platform. Purchase orders are not accepted until we notify you that your order has been accepted, and all such purchases are subject to separate fees and may be subject to Additional Terms and/or separate agreements with third party vendors who are responsible for completing, delivering or otherwise fulfilling your order (“Vendors”). We do not control Vendors and your order may be affected by circumstances outside of our control. While we will use all reasonable efforts to ensure orders are delivered within the estimated delivery timeframes, we are not responsible or liable for any shipping delays. You agree to hold us and any Vendors harmless from and against any loss, cost or expense in connection with such purchases. Blink does not warrant that product images or product descriptions or other content of the Services is accurate, complete, reliable, current, or error-free. Unless specifically noted, prices are referenced in United States Dollars and do not include taxes or surcharges. Actual prices may vary from prices presented and will be finalized once an order is submitted. All orders are made pursuant to a shipment contract unless expressly noted otherwise, meaning that the risk of loss and title for such items pass to you upon delivery to the carrier. If permitted by the applicable jurisdiction, we will assist with customs clearance, otherwise you assume all risks and responsibilities for import clearance and duties. Once an order is placed, orders cannot be changed or cancelled unless otherwise noted. Returns may be permitted if the product is defective, the incorrect quantity is received or, as determined in our discretion, is materially nonconforming and such nonconformance is not attributable to you. Unless otherwise stated, returns must be initiated within 5 days of receipt by notifying us and specifying the reason for the return, in which case, we will, at our option, either replace the product, including reprinting the product if appropriate, or refund the purchase price, such remedies being your sole remedies for any defective or nonconforming product, and excluding, to the fullest extent permitted by law, any other remedy available by law.


Confidentiality 

You agree to reasonably safeguard our confidential and/or proprietary information, including information related to pricing, methods, know-how, ideas, and any information related to or derived from any of them, and not use or disclose such information without our prior written consent. Upon expiration or termination of the Term, you agree to return or destroy, at our option, all such information. These obligations survive any termination or expiration of the MSA (or until any trade secrets lose their protection under applicable law) and do not apply to the extent otherwise required by law.


Disclaimer 

THE SERVICES, INCLUDING THE PLATFORM AND MATERIALS, ARE PROVIDED “AS IS.” NEITHER BLINK NOR ANY OF ITS AFFILIATES, REPRESENTATIVES, PERSONNEL, LICENSORS OR SERVICE PROVIDERS MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BLINK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, INCLUDING THE PLATFORM, MATERIALS OR ANY PRODUCTS OR RESULTS THEREFROM, WILL MEET ANY PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. YOU ARE RESPONSIBLE FOR USING THE SERVICES, INCLUDING THE PLATFORM AND MATERIALS, IN ACCORDANCE WITH THE TERMS SET FORTH IN THE MSA. ALL THIRD-PARTY CONTENT AND THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY CONCERNING SUCH THIRD-PARTY CONTENT OR THIRD-PARTY PRODUCT IS STRICTLY BETWEEN YOU AND THE RESPECTIVE OWNER OR LICENSOR OF SUCH THIRD-PARTY CONTENT OR THIRD-PARTY PRODUCT.


Limitation of Liability 

BLINK’S AGGREGATE LIABILITY FOR DAMAGES RELATED TO OR ARISING OUT OF THE MSA AND/OR THE SERVICES, INCLUDING THE PLATFORM, MATERIALS, OR ANY PRODUCTS PURCHASED THROUGH THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED THE FEES PAID BY YOU TO BLINK DURING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUED, DETERMINED ONLY AS UNDER THE RELEVANT SERVICE GIVING RISE TO THE CAUSE OF ACTION. IN NO EVENT WILL BLINK OR ANY OF ITS AFFILIATES, REPRESENTATIVES, PERSONNEL, LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THE MSA AND/OR THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, TO YOU OR ANY PERSON FOR: (i) LOSS OF PRODUCTION, USE, DATA, BUSINESS, REVENUE OR PROFIT; (iv) COST OF REPLACEMENT GOODS OR SERVICES; OR (vi) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PERSONS KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


Indemnification 

You agree to indemnify, defend and hold us and all of our affiliates, officers, directors, contractors, employees, agents, licensors, successors and assigns, harmless for, from and against any and all losses, liabilities, claims, and causes of action, including reasonable attorneys’ fees, arising out of or relating to (i) Your Data; (ii) our compliance with your (or any User’s) instructions or specifications; (iii) your (or any User’s) breach or violation of any representation, warranty, covenant or obligation under the MSA; (iv) your (or any User’s) use, misuse, or failure to use, or alteration or modification of any Service, including the Platform and any Materials, any feature of any of them, or any Third-Party Product (each, a “Covered Claim”). You agree not to settle a Covered Claim without our consent and agree that we have the right, at our option, to defend ourself against any such Covered Claim or to participate in the defense thereof by counsel of our own choice at our expense.


Suspension 

In addition to any other rights we may have, we may discontinue providing any Service or suspend or terminate any Service, including any access to or use of any Service or feature thereof, as to you or any User, without liability or obligation to any person at any time for any reason in our reasonable discretion, including for reasons related to Third-Party Products, such as inability to access any Third-Party Product or if there is a security threat or for maintenance or downtime, or if in our opinion you have failed, or any User has failed, to comply with the terms of the MSA or we suspect you or any User is involved in inappropriate conduct or your or any User’s account is being used for unauthorized or inappropriate purposes, or upon termination or expiration of the Master Terms or any Additional Terms, or to comply with any applicable law or otherwise protect or enforce our interests.


Contract Term 

The term of these Master Terms begins on the Effective Date and will, unless terminated earlier pursuant to the terms hereof, continue in effect until the expiration or termination of all Additional Terms for all Services (each such term, a “Service Term”). The Services Term for a particular Service shall be as set forth in the Additional Terms for such Service and will end on completion of the Services described in the Additional Terms (“Initial Services Term”). Upon the expiration of an Initial Services Term for a particular Service (other than for Projects), the Services Term for such Service will automatically renew for successive terms equal to the Initial Services Term, unless either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term.


Termination 

Either party may terminate these Master Terms, and/or any Additional Terms, as applicable, immediately upon written notice (i) in the event the other party commits a non-remediable material breach; (ii) the other party fails to cure any remediable material breach within 30 days of being notified in writing of such breach; (iii) the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. We may terminate the Master Terms or any Service Term, without liability to you or any person (i) if required by applicable law, (ii) if you have breached or violated any of the terms of the MSA, (iii) if you are subject to bankruptcy, insolvency, receivership or other similar proceedings under applicable law, (iv) if we cannot provide the Services as intended, or (v) if we discontinue, suspend or terminate any Service pursuant to the terms of the MSA. Except for the limited rights and licenses that, pursuant to the express terms of the MSA, may continue after any expiration or termination, all rights, licenses, consents, and authorizations granted by us to you will immediately terminate upon any expiration or termination of the Master Terms or the corresponding Service Term of any Service. No expiration or termination will affect your obligation to pay charges, including Fees, that become due before such expiration or termination or will entitle you to any refund, except that if we terminate because we are unable to continue providing the Services, we will refund to you any unused prepaid Fees (and your acceptance thereof will be your sole and exclusive remedy).


Survival 

Any term, provision, right or obligation in these Master Terms that, by its nature, should survive termination or expiration of these Master Terms, will survive any such expiration or termination, including Sections 4, 5, 6, 9, 11, 12, 13, 14, 17, 18 and 19 hereof.


Miscellaneous


(a)Notices. All notices and other communications pursuant to the Master Terms, or any Additional Terms, must be in writing and addressed to the parties at the addresses set forth herein (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). If a notice is sent by email, the notice must be provided as .pdf attachment to the email and sent to the relevant email address noted herein. A message published on the Platform also qualifies as written notice. All other notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Notices will be effective (i) if sent by email, on the business day after the date the email was sent, (ii) if published on the Platform, on the business day after publication, (iii) if delivered through any other medium, upon receipt.

(b) Construction. No amendment or modification of the Master Terms, or any Additional Terms, will be effective unless it is in writing and signed by an authorized representative of each party. The MSA, inclusive of these Master Terms and any Additional Terms, contains the entire agreement between the parties related to the subject matter. The section headings used are for convenience only. The introductory paragraph to these Mater Terms is contractual in nature and not a mere recital. As used herein, the word “or” is not exclusive. The relationship between the parties is that of independent contractors and nothing in the MSA creates any agency, partnership, joint venture or other joint or employment relationship between the parties.

(c) Waiver; Severability. No failure by Blink to exercise, or delay in exercising, any rights or provisions under the MSA will operate as a waiver by Blink of that right or provision, and no single or partial exercise of any right or provision will preclude any other exercise of that right or provision or the exercise of any other right or provision. If any provision or part of the MSA is held invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability will not affect any other provision or part of the MSA.

(d) Assignment. We may subcontract any or all of our obligations under the MSA and may assign or otherwise delegate any or all of our rights or duties under the MSA without your consent, but we will remain responsible for all subcontracted obligations, assigned rights and delegated duties. You may not assign or transfer, by operation of law or otherwise, any right or obligation under the MSA without our prior written consent. Any transfer or assignment in violation of this Section is null and void. The MSA is binding upon and inures to the benefit of the parties and their permitted successors and assigns. The MSA is for the sole benefit of the parties and their permitted successors and assigns.

(e) Third Party Beneficiaries. Except as expressly provided by these Master Terms or any Additional Terms, there are no third- party beneficiaries to the Services or any agreement between you and us. Nothing in the MSA, express or implied, confers upon any other person any legal or equitable right, benefit or remedy of any nature under or by reason of the MSA.

(f) Force Majeure. We will not be liable to you or in breach of the MSA for any failure or delay if such failure or delay is caused by circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(g) Disputes. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other through the notice procedures outlined in these Master Terms. If a dispute is not resolved within thirty days of notice, either party may bring a formal proceeding as outlined in these Master Terms

(h) Arbitration. You agree that any dispute or claim relating in any way to these Master Terms or the Services or to any products or services sold or distributed by us or through the Platform will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court that is a state or federal court in city of Cleveland, Cuyahoga County, Ohio if your claims qualify to seek injunctive or other equitable relief to enjoin infringement or other misuse of IP Rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of the agreement as a court would. Before you may begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at 1925 St. Clair Ave NE, Cleveland, Ohio, Attn: Legal Department. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The expedited procedures of the AAA’s rules will apply only in cases seeking exclusively monetary relief under $50,000, and in such cases the hearing will be scheduled to take place within 90 days of the arbitrator’s appointment. You and us both agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If a claim proceeds in court rather than in arbitration both parties agree to waive any right to a jury trial. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

(i) Governing Law; Jurisdiction. The MSA and the Services are governed by and shall be construed in accordance with the laws of the State of Ohio without regard to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio, and such laws of the state of Ohio will govern any dispute of any sort that might arise between you and Blink. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

(j) Further Assurances. You and us each agree, upon the reasonable request of the other, to execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the MSA.

(k) Equitable Relief. You agree that a breach or threatened breach of any obligation under Sections 2, 5, 6, 8 and 11 would cause us irreparable harm for which monetary damages would not be an adequate remedy. Except as limited by Section 19(h), you agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available, without any requirement to post bond or security, or to prove actual damages or that monetary damages are not an adequate remedy.

(l) Counterparts. These Master Terms, and any Additional Terms, if entered into offline, may be executed in counterparts, or separate signature pages. Each counterpart will be deemed an original and all counterparts together will be deemed one and the same agreement. A signed copy of the Master Terms, including any Additional Terms, whether by facsimile or electronic signature and whether delivered by facsimile, email, or other means of electronic transmission, is deemed to have the same legal effect as delivery of an original signed copy.

Master Terms

Table of Contents

These master terms and conditions (“Master Terms”) apply to the brand-management services, which may include procurement, warehousing, storage, printing and shipment services and design and creative-service projects, provided either offline or online through the cloud-based digital platform available through www.blinkswag.com (“Platform”) and the related software-as-a-service functionality available through the Platform (collectively, the “Services”) offered by Blink Swag, a division of Blink Marketing Inc, an Ohio corporation (“Blink”, “we”, “us”, or “our”). These Master Terms govern the relationship between you or your business (“you” or “your”) and us with respect to the Services. Additional terms and conditions, including agreements and policies available on or through the Platform, may also apply to specific Services, including specific portions, services, or features of the Services (“Additional Terms”, and together with these Master Terms, the “MSA”). Additional Terms may be included as part of a separate contract between us or included in your order submission, proposal, or scope of work. All Additional Terms are hereby incorporated by this reference into these Master Terms. In the event of any conflict or inconsistency between the Master Terms and any Additional Terms, these Master Terms will govern and control unless the Additional Terms expressly state otherwise. The Master Terms are effective as between you and us upon the date that you sign or electronically agree and submit to us the Master Terms and our acceptance of the same (“Effective Date”). The Additional Terms are effective as between you and us upon your signing or electronically agreeing and submitting to us Additional Terms and our acceptance of the same. Capitalized terms have the meaning ascribed to them in and throughout these Master Terms.
 

Services

Subject to and conditioned on your compliance with the terms of the MSA, during the Services Term (as defined in Section 16), we will use commercially reasonable efforts to provide you with access to and use of the Services. We may modify, remove, add, or enhance features of any Service in our sole discretion from time to time.
 

Users and Representatives

An account may be required to access and use some of the Services or functionalities, and the Services and functionalities available may vary based on the type of account. You may authorize your and your affiliates’ employees, contractors and agents (“Users”) to use certain Services requiring an account, provided that each User accessing the Services must have its own account access credentials, and you agree not to allow or authorize anyone other than the applicable User to use such account access credentials. You are solely responsible for all activities conducted by each User and for each User’s compliance with the MSA. We have no liability or responsibility of any kind and are not responsible or liable for any loss, delay or failure attributable to you or to any User.


Third-Party Products 

We may from time to time make certain applications, products, services, materials, data information and content not owned by us available in connection with the Services (“Third-Party Products”). Any use by you or a User of any Third Party Product is subject to the terms and conditions applicable to such Third Party Product. We make no representation or warranty as to any Third Party Product.


Content and Documentation 

As part of the Services, you may receive or be provided access to (i) documents, information, materials and content of ours or which is obtained by us from third-parties (“Content”), (ii) documents, information, materials and content prepared or commissioned by us that describe any Service or the functionality, components, features, requirements or use of any Service or any aspect of the Services (“Documentation”), (iii) certain work product, including documents, materials, designs and/or written copy, requested by you (“Deliverables”, and collectively with “Content” and “Documentation”, “Materials”). Your use or approval of any Materials, or any other information or recommendations we provide or make available to you is at your sole discretion and you agree that we will not be liable for the consequence of such use.


Intellectual Property 

Subject to and conditioned on your compliance with the terms of the MSA, we will grant you a limited right to access and use the Services, including the Platform and Material of ours, during the applicable Service Term, and the Deliverables, during and after the applicable Service Term, in each case solely for your personal or business purposes by you and the Users. All right, title and interest, including all intellectual property rights under or related to any intellectual property right laws or similar protections at any time (“IP Rights”), in or with respect to any of the Services, including the Platform, any Material, Processed Data (as defined below) and Third-Party Products, are and will remain with us or the respective rights holder, as applicable. All technology, works, inventions, content, information, materials and data developed by us are and will remain with us, unless we expressly agree otherwise. You unconditionally and irrevocably assign, transfer and grant to us an assignment of all right, title and interest in and to (i) all suggestions, ideas, enhancement requests, or other feedback provided by you or any User relating to the Services, and (ii) all content, information, materials or data that is derived by or through the Services or as a result of providing or making available the Services from processing Your Data (as defined in Section 6), including all related IP Rights (“Processed Data”). You agree that all rights in and to any Deliverables (except for Your Data and related IP Rights in Your Data) are retained by Blink; we reserve the right to use any Deliverables as sample work for advertising and promotional purposes and for internal purposes and you irrevocably grant us all rights and licenses necessary or useful for us to benefit from the foregoing. We may assign, transfer, and sublicense such rights to others without your approval. Except for the limited rights and licenses granted to you under the MSA, we do not grant you any right, title or interest in or to any of the Services or any related IP Rights.


Your Data

Unless specifically permitted by you, you will own, as between you and us, all of the content, information, materials and data, including all IP Rights, that is submitted by you or any User to the Service in the course of accessing or using the Services (“Your Data”). Your Data does not include Processed Data. You represent and warrant to us that you are the rightful owner or rightsholder of Your Data and have all necessary rights and consents in and relating to Your Data so that, as received by us, they do not and will not infringe, misappropriate, or otherwise violate any IP Right or other right of any person. We have no obligation to check or confirm the accuracy or completeness of any content, information, materials or data, including Your Data. You irrevocably grant us all rights and permissions in or relating to Your Data, including all related IP Rights, and any suggestions, ideas, enhancement requests, or other feedback provided by you or any User relating to the Services, as may be necessary or useful for us to provide or make available the Services, fulfill our obligations, and protect our rights, and develop, market, improve and enhance our business. In furtherance of the foregoing, you agree that we may use and publish your name and logo to identify the customer relationship between you and us.


Projects and Deliverables

As part of the Services, you may request that we perform design work or other creative-services projects (“Projects”) and provide you with certain Deliverables. Projects and Deliverables may be subject to Additional Terms. Unless otherwise specified in the Additional Terms, you agree to approve or reject Deliverables within 5 days of receipt and your approval or rejection must be submitted in the same manner that the Deliverables were provided, such as by reply email. You agree not to reject the Deliverables unless they materially fail to conform to the Additional Terms and you agree not to unreasonably withhold your approval. Any rejection of Deliverables must include a reasonably detailed description identifying each material failure. If you fail to properly reject each Deliverable, you will be deemed to have accepted such Deliverable as provided. In the event we resubmit any Deliverable to you for approval and you properly reject that Deliverable in good faith on more than three occasions, either you or us may choose to terminate the applicable project and/or Additional Terms by written notice to the other. This Section 7 sets forth our sole obligation and your exclusive remedy for the failure of any Deliverable to conform to the applicable Additional Terms.


Your Responsibilities 

You agree not to (i) access or use any Service, including the Platform, for any purpose that is unlawful, violates the IP Rights of any person or is not expressly permitted by, or is otherwise a violation of, the terms of the MSA, (ii) sell, resell or lease any Service or any feature of any Service, including the Platform, (iii) attempt to circumvent the security or interfere with the proper working of any Service or the servers on which the Platform is hosted. You further agree to (i) comply with all applicable laws (including laws regarding privacy and protection of personal or consumer information) in connection with your access or use of the Services, (ii) obtain and maintain any equipment, hardware and software as may be necessary for you to access or receive the Services (“Your Systems”), (iii) take reasonable steps to prevent unauthorized access to or use of Your Systems and the Services, including any related access credentials for Users.


Fees and Payment 

You agree to pay all amounts due on time and in full and without deduction. Fees for Services (“Fees”) are set forth in the Additional Terms for such Service. Unless otherwise stated, all payments made are non-refundable and all payment obligations are non-cancellable. Unless expressly stated otherwise, all Fees and all references to “USD” or “$” are to United States Dollars. We may increase the Fees at the end of the Service Term and will notify you in advance of such change. Fees do not include taxes or surcharges that may apply to the Services. Fees may include charges assessed by third parties, including subscription charges, for services furnished by them directly for your benefit in connection with the Services. Unless otherwise set forth in Additional Terms, payments for each Service are due in advance of the start of such Service’s corresponding Services Term (as defined in Section 16). We may charge you a late fee or terminate or suspend or discontinue providing any Service without notice to you if we do not receive your payment by the due date or if your payment is rejected or refused. Even if we suspend or terminate or discontinue providing any Service, you are still responsible for any charges due at the time of such suspension or termination or discontinuation, and you are responsible for all costs of collecting any unpaid amounts you owe us.


Purchases 

Purchase orders may be created by you or Users as part of the Services, including purchases created through the Platform. Purchase orders are not accepted until we notify you that your order has been accepted, and all such purchases are subject to separate fees and may be subject to Additional Terms and/or separate agreements with third party vendors who are responsible for completing, delivering or otherwise fulfilling your order (“Vendors”). We do not control Vendors and your order may be affected by circumstances outside of our control. While we will use all reasonable efforts to ensure orders are delivered within the estimated delivery timeframes, we are not responsible or liable for any shipping delays. You agree to hold us and any Vendors harmless from and against any loss, cost or expense in connection with such purchases. Blink does not warrant that product images or product descriptions or other content of the Services is accurate, complete, reliable, current, or error-free. Unless specifically noted, prices are referenced in United States Dollars and do not include taxes or surcharges. Actual prices may vary from prices presented and will be finalized once an order is submitted. All orders are made pursuant to a shipment contract unless expressly noted otherwise, meaning that the risk of loss and title for such items pass to you upon delivery to the carrier. If permitted by the applicable jurisdiction, we will assist with customs clearance, otherwise you assume all risks and responsibilities for import clearance and duties. Once an order is placed, orders cannot be changed or cancelled unless otherwise noted. Returns may be permitted if the product is defective, the incorrect quantity is received or, as determined in our discretion, is materially nonconforming and such nonconformance is not attributable to you. Unless otherwise stated, returns must be initiated within 5 days of receipt by notifying us and specifying the reason for the return, in which case, we will, at our option, either replace the product, including reprinting the product if appropriate, or refund the purchase price, such remedies being your sole remedies for any defective or nonconforming product, and excluding, to the fullest extent permitted by law, any other remedy available by law.


Confidentiality 

You agree to reasonably safeguard our confidential and/or proprietary information, including information related to pricing, methods, know-how, ideas, and any information related to or derived from any of them, and not use or disclose such information without our prior written consent. Upon expiration or termination of the Term, you agree to return or destroy, at our option, all such information. These obligations survive any termination or expiration of the MSA (or until any trade secrets lose their protection under applicable law) and do not apply to the extent otherwise required by law.


Disclaimer 

THE SERVICES, INCLUDING THE PLATFORM AND MATERIALS, ARE PROVIDED “AS IS.” NEITHER BLINK NOR ANY OF ITS AFFILIATES, REPRESENTATIVES, PERSONNEL, LICENSORS OR SERVICE PROVIDERS MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BLINK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, INCLUDING THE PLATFORM, MATERIALS OR ANY PRODUCTS OR RESULTS THEREFROM, WILL MEET ANY PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. YOU ARE RESPONSIBLE FOR USING THE SERVICES, INCLUDING THE PLATFORM AND MATERIALS, IN ACCORDANCE WITH THE TERMS SET FORTH IN THE MSA. ALL THIRD-PARTY CONTENT AND THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY CONCERNING SUCH THIRD-PARTY CONTENT OR THIRD-PARTY PRODUCT IS STRICTLY BETWEEN YOU AND THE RESPECTIVE OWNER OR LICENSOR OF SUCH THIRD-PARTY CONTENT OR THIRD-PARTY PRODUCT.


Limitation of Liability 

BLINK’S AGGREGATE LIABILITY FOR DAMAGES RELATED TO OR ARISING OUT OF THE MSA AND/OR THE SERVICES, INCLUDING THE PLATFORM, MATERIALS, OR ANY PRODUCTS PURCHASED THROUGH THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED THE FEES PAID BY YOU TO BLINK DURING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUED, DETERMINED ONLY AS UNDER THE RELEVANT SERVICE GIVING RISE TO THE CAUSE OF ACTION. IN NO EVENT WILL BLINK OR ANY OF ITS AFFILIATES, REPRESENTATIVES, PERSONNEL, LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THE MSA AND/OR THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, TO YOU OR ANY PERSON FOR: (i) LOSS OF PRODUCTION, USE, DATA, BUSINESS, REVENUE OR PROFIT; (iv) COST OF REPLACEMENT GOODS OR SERVICES; OR (vi) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PERSONS KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


Indemnification 

You agree to indemnify, defend and hold us and all of our affiliates, officers, directors, contractors, employees, agents, licensors, successors and assigns, harmless for, from and against any and all losses, liabilities, claims, and causes of action, including reasonable attorneys’ fees, arising out of or relating to (i) Your Data; (ii) our compliance with your (or any User’s) instructions or specifications; (iii) your (or any User’s) breach or violation of any representation, warranty, covenant or obligation under the MSA; (iv) your (or any User’s) use, misuse, or failure to use, or alteration or modification of any Service, including the Platform and any Materials, any feature of any of them, or any Third-Party Product (each, a “Covered Claim”). You agree not to settle a Covered Claim without our consent and agree that we have the right, at our option, to defend ourself against any such Covered Claim or to participate in the defense thereof by counsel of our own choice at our expense.


Suspension 

In addition to any other rights we may have, we may discontinue providing any Service or suspend or terminate any Service, including any access to or use of any Service or feature thereof, as to you or any User, without liability or obligation to any person at any time for any reason in our reasonable discretion, including for reasons related to Third-Party Products, such as inability to access any Third-Party Product or if there is a security threat or for maintenance or downtime, or if in our opinion you have failed, or any User has failed, to comply with the terms of the MSA or we suspect you or any User is involved in inappropriate conduct or your or any User’s account is being used for unauthorized or inappropriate purposes, or upon termination or expiration of the Master Terms or any Additional Terms, or to comply with any applicable law or otherwise protect or enforce our interests.


Contract Term 

The term of these Master Terms begins on the Effective Date and will, unless terminated earlier pursuant to the terms hereof, continue in effect until the expiration or termination of all Additional Terms for all Services (each such term, a “Service Term”). The Services Term for a particular Service shall be as set forth in the Additional Terms for such Service and will end on completion of the Services described in the Additional Terms (“Initial Services Term”). Upon the expiration of an Initial Services Term for a particular Service (other than for Projects), the Services Term for such Service will automatically renew for successive terms equal to the Initial Services Term, unless either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term.


Termination 

Either party may terminate these Master Terms, and/or any Additional Terms, as applicable, immediately upon written notice (i) in the event the other party commits a non-remediable material breach; (ii) the other party fails to cure any remediable material breach within 30 days of being notified in writing of such breach; (iii) the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. We may terminate the Master Terms or any Service Term, without liability to you or any person (i) if required by applicable law, (ii) if you have breached or violated any of the terms of the MSA, (iii) if you are subject to bankruptcy, insolvency, receivership or other similar proceedings under applicable law, (iv) if we cannot provide the Services as intended, or (v) if we discontinue, suspend or terminate any Service pursuant to the terms of the MSA. Except for the limited rights and licenses that, pursuant to the express terms of the MSA, may continue after any expiration or termination, all rights, licenses, consents, and authorizations granted by us to you will immediately terminate upon any expiration or termination of the Master Terms or the corresponding Service Term of any Service. No expiration or termination will affect your obligation to pay charges, including Fees, that become due before such expiration or termination or will entitle you to any refund, except that if we terminate because we are unable to continue providing the Services, we will refund to you any unused prepaid Fees (and your acceptance thereof will be your sole and exclusive remedy).


Survival 

Any term, provision, right or obligation in these Master Terms that, by its nature, should survive termination or expiration of these Master Terms, will survive any such expiration or termination, including Sections 4, 5, 6, 9, 11, 12, 13, 14, 17, 18 and 19 hereof.


Miscellaneous


(a) Notices. All notices and other communications pursuant to the Master Terms, or any Additional Terms, must be in writing and addressed to the parties at the addresses set forth herein (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). If a notice is sent by email, the notice must be provided as .pdf attachment to the email and sent to the relevant email address noted herein. A message published on the Platform also qualifies as written notice. All other notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Notices will be effective (i) if sent by email, on the business day after the date the email was sent, (ii) if published on the Platform, on the business day after publication, (iii) if delivered through any other medium, upon receipt.

(b) Construction. No amendment or modification of the Master Terms, or any Additional Terms, will be effective unless it is in writing and signed by an authorized representative of each party. The MSA, inclusive of these Master Terms and any Additional Terms, contains the entire agreement between the parties related to the subject matter. The section headings used are for convenience only. The introductory paragraph to these Mater Terms is contractual in nature and not a mere recital. As used herein, the word “or” is not exclusive. The relationship between the parties is that of independent contractors and nothing in the MSA creates any agency, partnership, joint venture or other joint or employment relationship between the parties.

(c) Waiver; Severability. No failure by Blink to exercise, or delay in exercising, any rights or provisions under the MSA will operate as a waiver by Blink of that right or provision, and no single or partial exercise of any right or provision will preclude any other exercise of that right or provision or the exercise of any other right or provision. If any provision or part of the MSA is held invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability will not affect any other provision or part of the MSA.

(d) Assignment. We may subcontract any or all of our obligations under the MSA and may assign or otherwise delegate any or all of our rights or duties under the MSA without your consent, but we will remain responsible for all subcontracted obligations, assigned rights and delegated duties. You may not assign or transfer, by operation of law or otherwise, any right or obligation under the MSA without our prior written consent. Any transfer or assignment in violation of this Section is null and void. The MSA is binding upon and inures to the benefit of the parties and their permitted successors and assigns. The MSA is for the sole benefit of the parties and their permitted successors and assigns.

(e) Third Party Beneficiaries. Except as expressly provided by these Master Terms or any Additional Terms, there are no third- party beneficiaries to the Services or any agreement between you and us. Nothing in the MSA, express or implied, confers upon any other person any legal or equitable right, benefit or remedy of any nature under or by reason of the MSA.

(f) Force Majeure. We will not be liable to you or in breach of the MSA for any failure or delay if such failure or delay is caused by circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(g) Disputes. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other through the notice procedures outlined in these Master Terms. If a dispute is not resolved within thirty days of notice, either party may bring a formal proceeding as outlined in these Master Terms

(h) Arbitration. You agree that any dispute or claim relating in any way to these Master Terms or the Services or to any products or services sold or distributed by us or through the Platform will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court that is a state or federal court in city of Cleveland, Cuyahoga County, Ohio if your claims qualify to seek injunctive or other equitable relief to enjoin infringement or other misuse of IP Rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of the agreement as a court would. Before you may begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at 1925 St. Clair Ave NE, Cleveland, Ohio, Attn: Legal Department. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The expedited procedures of the AAA’s rules will apply only in cases seeking exclusively monetary relief under $50,000, and in such cases the hearing will be scheduled to take place within 90 days of the arbitrator’s appointment. You and us both agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If a claim proceeds in court rather than in arbitration both parties agree to waive any right to a jury trial. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

(i) Governing Law; Jurisdiction. The MSA and the Services are governed by and shall be construed in accordance with the laws of the State of Ohio without regard to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio, and such laws of the state of Ohio will govern any dispute of any sort that might arise between you and Blink. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

(j) Further Assurances. You and us each agree, upon the reasonable request of the other, to execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the MSA.

(k) Equitable Relief. You agree that a breach or threatened breach of any obligation under Sections 2, 5, 6, 8 and 11 would cause us irreparable harm for which monetary damages would not be an adequate remedy. Except as limited by Section 19(h), you agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available, without any requirement to post bond or security, or to prove actual damages or that monetary damages are not an adequate remedy.

(l) Counterparts. These Master Terms, and any Additional Terms, if entered into offline, may be executed in counterparts, or separate signature pages. Each counterpart will be deemed an original and all counterparts together will be deemed one and the same agreement. A signed copy of the Master Terms, including any Additional Terms, whether by facsimile or electronic signature and whether delivered by facsimile, email, or other means of electronic transmission, is deemed to have the same legal effect as delivery of an original signed copy.

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