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Product Terms

TERMS AND AGREEMENTS
PRIVACY RESOURCES

Product Terms

Last modified date: june 5, 2024

1. General

As more fully described herein, if you, in your sole discretion and as part of your access and use of the Blackmedia Platform, wish to use of any of the additional products or services specified herein (each, an “Additional Product Offering”), your use is subject to the applicable Additional Product Offering’s terms and conditions contained in these Product Specific Terms (“Product Terms”). By using any Additional Product Offering, ( 1 ) you confirm that you have reviewed and agree to be bound by, on behalf of yourself and/or the applicable entity you use Blackmedia on behalf of, Section 1 (“General”), Section 8 (“Miscellaneous”), and the applicable Additional Product Offering’s terms and conditions below; and ( 2 ) you agree such terms are hereby incorporated by reference into either Blackmedia’s Terms of Service or the Master Subscription Agreement (or related agreement) between you and Blackmedia (“Blackmedia”, “we”, “us”, or “our”), as applicable (in either case, together with the applicable Product Terms, the “Agreement”). By way of example only, if you choose to use Blackmedia’s Localization Feature (Section 5) and no other Additional Product Offering, you agree to be bound by the terms and conditions of Sections 1, 5, and 8 of these Product Terms (which are incorporated by reference into the Agreement between you and Blackmedia, and the remaining Sections do not apply). For the avoidance of doubt, if you do not agree to Section 1 (“Agreement”), Section 8 (“General”), and/or the applicable Section(s) for any Additional Product Offering you wish to use, you may not use (and must discontinue any use of) the applicable Additional Product Offering. For reference, undefined capitalized terms used herein shall have the meanings ascribed to them in the Agreement.

2. Third-Party Services

2.1 Integrations, Offerings and Usage

‍In your sole discretion, you may choose to integrate or enable for use with the Platform certain third-party services, platforms, applications, add-ons, integrations, and related offerings not provided by Blackmedia (collectively, “Third-Party Services”). Examples of Third-Party Services include (by way of example only and without limitation) E-Commerce Payment Processors (as defined below, i.e., Stripe), Apps (e.g., HubSpot), and other related partner and service provider integrations and extensions. You acknowledge and agree that Blackmedia may receive a revenue share from Third-Party Services that you choose to use as part of your use of the Blackmedia Platform. Notwithstanding, you acknowledge and agree that your use of any of these Third-Party Services is subject to and shall be governed by the applicable terms and conditions of your separate agreement with the relevant third-party provider. Blackmedia does not control and makes no representations or warranties with respect to any Third-Party Services and, to the maximum extent permissible under applicable laws, shall not be held liable for their security, functionality, operation, availability, interoperability, or how any Third-Party Service uses your Website Content or related data. When using Third-Party Services, your security is your responsibility. Notwithstanding the foregoing, if you choose to use a Third-Party Service with your use of the Platform, you acknowledge and agree that ( 1 ) you are authorizing Blackmedia to access and share your Website Content or related data with the Third-Party Service on your behalf solely so the Third-Party Service may be provided or made available to you; and ( 2 ) any information that a Third-Party Service collects, stores and processes from you or your Blackmedia Account will be subject to such Third-Party Service’s terms of service, privacy notice, or similar terms, and is not subject to Blackmedia’s Privacy Policy or Data Processing Addendum.

2.2 Responsibilities and Availability

‍You further acknowledge and agree that ( 1 ) it is the sole responsibility of the respective Third-Party Service provider, and not Blackmedia, for providing all support, maintenance, and technical assistance to you with respect to their Third-Party Service(s) (including their interoperation with your Blackmedia Account and Website Content); ( 2 ) Blackmedia may, at any time and in our sole discretion and without any notice obligation, suspend, disable, or remove any Third-Party Service; and ( 3 ) to the maximum extent permissible under applicable law, Blackmedia shall not be liable for any losses, damages, or liabilities you may incur as a result of Blackmedia taking such action, including without limitation any loss of profits, data, goodwill or other intangible losses.

3. Blackmedia E-Commerce

In your sole discretion, you may choose to enable and use with the Platform optional features that permit you, by way of your Website Content, to provide or sell your products and services to, and/or collect payments from, your End Users (collectively, “E-Commerce Activities”). In order to conduct E-Commerce Activities, you must be 18 years or older (or at least the legal age of majority in your country of residence) and you must provide your full legal name, current address, valid email address, and any other information we request. For the avoidance of doubt, Blackmedia is not a party to, and shall not be liable for, E-Commerce Activities you undertake or any related interactions between you and your End Users. Any products or services that you offer for sale in your E-Commerce Activities is your exclusive responsibility, so your End Users must look only to you for any damages that result from their purchases. You are solely responsible for your E-Commerce Activities, including but not limited to responsibility for the following:
  1. all Taxes and fees associated with your E-Commerce Activities, including without limitation any Taxes related to the purchase or sale of products or services in connection with your E-Commerce Activities;
  2. collecting, reporting, and remitting required Taxes to relevant government authorities;
  3. informing your End Users of required Taxes, and providing them with invoices as required by applicable law;
  4. monitoring distance sales thresholds in the European Union (as applicable) and other indirect Taxes (such as value-added tax or goods and services tax) and registration thresholds in the countries where you have customers or where you ship goods or provide services;
  5. registering for indirect Taxes in countries where you are required to register. You also agree that any tax estimates, reporting or related materials that we may provide via the Platform are for illustration purposes only, and you may not rely on them to comply with your tax obligations. We do not give tax advice, and nothing we say should be interpreted as such;
  6. fulfilling and delivering your products and services to your End Users;
  7. any claims or warranties you make in connection with your E-Commerce Activities and any claims made by End Users against you; and
  8. handling any comments or complaints related to your E-Commerce Activities, including without limitation any issues related to payments, promotions, refunds or chargebacks. You agree to provide accurate and complete contact information on your sites so that your End Users can submit comments or questions to you.
To accept payments from your End Users in connection with your E-Commerce Activities, you must create and connect your Blackmedia Account to your payment processor account (e.g., Stripe) (the “E-Commerce Payment Processor”). Your relationship and account with the E-Commerce Payment Processor is governed by the E-Commerce Payment Processor’s terms, conditions, and policies (e.g., prohibited or restricted business activities). By way of example only and without limitation, by registering an account with Stripe as the E-Commerce Payment Processor, you agree that you will not conduct any E-Commerce Activities that are connected with any Prohibited and Restricted Businesses, which may vary from country to country. For the avoidance of doubt, Blackmedia does not control and is not liable for any issues you have with the E-Commerce Payment Processor or any transaction you enter into with or through it (e.g., obtaining invoices for any transaction fees associated with your E-Commerce Activities). The E-Commerce Payment Processor is a Third-Party Service, as described in Section 2 of these Product Terms, and your use of the E-Commerce Payment Processor shall be subject to the terms and conditions in Section 2 as well.

4. Blackmedia Marketplace

4.1 Third-Party Designers

‍Blackmedia operates and provides an online marketplace (the “Marketplace”) where Customers of the Platform may find and review lists of third-party designers, freelancers, and partner agencies available for hire at https://blackmedia.be/designers/hire and https://experts.blackmedia.be to assist with creating Website Content or otherwise using the Platform (collectively, “Third-Party Designers”). For the avoidance of doubt, these lists are purely for informational purposes and Blackmedia does not ( 1 ) employ (and is not directly affiliated with) any of these Third-Party Designers, or ( 2 ) guarantee the accuracy, reliability, quality, or completeness of the work done by them. You agree it is your sole responsibility to vet any Third-Party Designers before you choose to hire them as well as any content they provide to you (e.g., customized Website Content) prior to your use of such content, and you assume all liability for any content they provide that you ultimately choose to use. Blackmedia may, in its discretion, investigate Third-Party Designers who receive multiple complaints from users, provided that Blackmedia does not guarantee that it will take any specific disciplinary action regarding such complaints.

4.2 Marketplace Products

‍Blackmedia’s Marketplace also allows you to select free or paid Templates, Libraries, and Apps that can be integrated or otherwise used by you as part of the Platform (collectively, “Marketplace Products“). For the avoidance of doubt, Marketplace Products may be developed and maintained by either Blackmedia or by third parties (e.g., designers or developers). Your selection or use of Marketplace Products provided by a third-party (the “Product Provider”) may require you to agree to additional terms and conditions required by the Product Provider for the applicable Marketplace Product. You acknowledge and agree that Blackmedia is not a party to the agreement between you and the Product Provider with respect to that Marketplace Product. Notwithstanding, you agree that Blackmedia is an intended third-party beneficiary to the agreement between you and the Product Provider with respect to that Marketplace Product and shall have the right (and will be deemed to have accepted the right) to enforce that agreement against you as a third-party beneficiary at our discretion. You acknowledge and agree that ( 1 ) Blackmedia is not responsible for and does not endorse or guarantee the quality of any Marketplace Products made available by a Product Provider; and ( 2 ) the applicable Product Provider is solely responsible for the Marketplace Product it provides, the content therein, any claims that you or any of your End Users may have relating to that Marketplace Product, and any technical support required if a problem arises with its respective Marketplace Product. To the maximum extent permissible under applicable law, Blackmedia assumes no responsibility and disclaims all liability in connection with your use of any third-party Marketplace Products. When you install and/or purchase a Marketplace Product via Blackmedia’s Marketplace, you may be required to make related payments directly to Blackmedia. For Marketplace Products not owned or operated by Blackmedia, you are receiving access rights to use such Marketplace Product from the applicable Product Provider. These rights granted to you to use any Marketplace Product are personal to you, and are not transferable to any third parties, such as your End Users. Any rights to provide or resell Marketplace Products to third parties must be granted directly by the Product Provider.

5. Localization

In your sole discretion, and subject to the terms of your payment plan (as set forth on https://blackmedia.be/pricing) or the applicable Order Form, you may purchase language translation services made available via the Platform that enable you to localize (e.g., translate) your Website Content and make it available to End Users in alternative languages for specific locales (the “Localization Feature“). For illustration purposes only, the Localization Feature is powered by the highly-reputed Amazon Translate machine learning engine. By using the Localization Feature, you acknowledge and agree that ( 1 ) the translation and localization provided via the Localization Feature (i) may not be 100% accurate, complete, or reliable and (ii) does not represent Blackmedia’s views; and ( 2 ) Blackmedia makes no guarantee regarding the accuracy, quality, reliability, or suitability of the output from the Localization Feature (“Localized Website Content”). Notwithstanding any other term of the Agreement, ( 1 ) the Localization Feature is provided “as is” without warranties or representations of any kind; ( 2 ) to the maximum extent permissible under applicable laws, Blackmedia disclaims any and all liability related to your use of the Localization Feature or any Localized Website Content; and ( 3 ) you assume all risks associated with your use of the Localization Feature and Localized Website Content, and you are solely responsible for: (a) thoroughly reviewing all Localized Website Content (including, without limitation, verifying its accuracy, authenticity, legality, reliability, and appropriateness for Customer’s contemplated use case(s)) before publishing, distributing, displaying, or otherwise using such Localized Website Content; and (b) ensuring that your Localized Website Content complies with all applicable laws and the terms of the Agreement.

6. Generative Artificial Intelligence Products

In your sole discretion, you may choose to access or use Blackmedia’s generative artificial intelligence, machine learning, or similar technologies to assist you in your use of the Platform (collectively, “AI Products”). AI Products enable you to submit prompts (“Input”) and in return receive automatically-generated content (“Output”). For the avoidance of doubt, if you choose to publish or upload any Output via the Platform, such Output shall be deemed your Website Content and is subject to all obligations and other terms and conditions related to your Website Content in the Agreement.

6.1 Ownership Rights and Licenses

6.1.1 Ownership. Subject to the provisions of these Product Terms (including the limitations set forth in Section 6.6 (Learning Assistant) below), to the maximum extent permitted under applicable law, you are the sole owner of any Input and Output. 6.1.2 License to Blackmedia. To the maximum extent permitted under applicable law, you grant Blackmedia a non-exclusive, irrevocable, perpetual, royalty-free, transferable, sub-licensable, worldwide right and license to use, host, store, modify, reproduce, publicly display, distribute, publish and create derivative works of any Input and Output created by the AI Products for the purpose of providing, improving, and promoting the AI Products. 6.1.3 License to AI Software Service Providers. In order for you to access and use AI Products, Blackmedia must transfer your Input to applicable third-party service provider(s) necessary to provide the AI Products (each, an “AI Software Service Provider”). Accordingly, you grant Blackmedia (including our subprocessors acting on our behalf) a non-exclusive, irrevocable, perpetual, royalty-free, transferrable, sub-licensable, worldwide right and license to (a) transfer your Input, to the applicable AI Software Service Provider(s) to use in accordance with their terms and policies; and (b) enable the applicable AI Software Service Provider(s) to use any Output they generate from their Input in accordance with their terms and policies.

6.2 Your Responsibilities

Notwithstanding anything to the contrary in the Agreement, you are solely responsible for: (a) thoroughly reviewing and deciding whether to use any Output before publishing or otherwise using such Output (including, by way of example only and without limitation, verifying any Output’s accuracy, authenticity, reliability, and appropriateness for your contemplated use case(s)); (b) deciding whether to use your Input and Output in any way related to your use of the Platform, including as Website Content; and (c) ensuring that your Input and Output complies with all applicable laws and terms of the Agreement.

6.3 Warnings and Disclaimers

Generative artificial intelligence that allows individuals to provide inputs to generate content is an exciting, novel, and ever-evolving technology. AI Products are based on algorithms and machine learning techniques that generate output based on available data sets and patterns. Output can be inaccurate, misleading, biased, or not fit for the contemplated or hopeful use or purpose. You acknowledge and agree that: (a) any Output does not represent Blackmedia’s views; (b) Blackmedia makes no guarantee regarding the accuracy, quality, reliability, or suitability of the Output; and (c) to the maximum extent permissible under applicable law, and notwithstanding any other term of the Agreement, Blackmedia disclaims any and all liability arising from or related to your use of AI Products or Input and Output in any form. Additionally, you acknowledge that your Output may not be unique and could be identical to that received by other users, whether they are Blackmedia Customers or customers of the same AI Software Service Provider. For Blackmedia Customers, any Output you receive through AI Products is considered your content, even if another user receives the same Output, which will also be their content.

6.4 Restricted Uses of AI Products

In addition to the matters listed in our Acceptable Use Policy, you agree not to use AI Products or any Input or Output to:
  1. mislead or deceive anyone that any Input and Output was human-generated;
  2. provide medical advice or any content regarding the treatment, prevention, diagnosis or transmission of diseases;
  3. provide legal or financial (including but not limited to tax and investment) advice;
  4. generate contracts or legally binding obligations;
  5. generate political content including for dissemination in electoral campaigns;
  6. reverse engineer or attempt to generate the Platform’s source code;
  7. generate spam, ransomware, keyloggers, viruses, or other malicious software;
  8. condone, enable, promote or commit any act (i) of violence; (ii) that could result in death or personal injury; or (iii) in violation of applicable law; or
  9. create or use any content which constitutes or includes Personal Information of yourself or anyone else, including without limitation names, email addresses, or data concerning an individual’s race, ethnicity, nationality, health status, religious beliefs, gender identity or sexual orientation.

6.5 Privacy and Confidentiality

‍As part of your use of AI Products, including Learning Assistant, you should not include any Personal Information or any confidential, privileged, proprietary, or other sensitive information in your Input and Output. Notwithstanding, you acknowledge that our Privacy Policy and Data Processing Addendum applies to the handling of such Personal Information you provide as Input.

6.6 Learning Assistant‍

As part of the Platform, Blackmedia may make available for you to use its AI Product known as Learning Assistant, an in-designer chatbot that provides natural language guidance and links to publicly available resources. Notwithstanding Section 6.1.1, Blackmedia shall retain exclusive ownership of any Blackmedia pre-existing Intellectual Property Rights in the Output generated by Learning Assistant, which may include, by way of example only and without limitation, videos, help articles, or other resources published by Blackmedia (collectively, “Blackmedia Retained Rights”).For the avoidance of doubt, if you choose to publish or use any Output generated by Learning Assistant via the Platform, such Output shall be deemed your Website Content and is subject to all obligations and other terms and conditions related to your Website Content in the Agreement; provided, however, Blackmedia remains the sole and exclusive owner of any and all Blackmedia Retained Rights.

7. The Intellimize Platform

7.1 The Intellimize Platform

‍Subject to Customer’s compliance with the Agreement, Blackmedia grants Customer a non-exclusive, non-transferable right to access and use the Intellimize product offerings procured by Customer under the applicable Order Form (the “Intellimize Platform”) for Customer’s internal business purposes during the Subscription Term. For the purposes of the Agreement, if Customer subscribes to the Intellimize Platform, all references to the Platform or the Blackmedia Platform in the Agreement shall include the Intellimize Platform.

7.2 Customer and Third-Party Provider Activity Data

‍Customer understands and agrees that the Intellimize Platform is a machine learning tool that tracks and uses certain data consistent with how machine learning tools work and as a result, Blackmedia cannot modify data uses on an individual customer basis. More specifically, the Intellimize Platform will collect and use information about the web browsing activities of individual end users on Customer’s mobile and desktop websites, data from the browsers of such end users, and other data that Customer chooses to provide Blackmedia through the Intellimize Platform. Blackmedia will also obtain data from third party services that relates to and/or may enhance such End User interactions with Customer and will use the data in the provision of the Platform (the “Third-Party Provider Activity Data”). All of the data and information described in this Section 7.2, including the Third-Party Provider Activity Data, is referred to as “Customer Activity Data.” Without limiting any other term of the Agreement, Customer represents and warrants that it has and shall maintain all necessary rights, releases, and consents to allow Blackmedia to collect, use, and disclose Customer Activity Data in the manner contemplated by the Agreement.

7.3 Anonymous Data

‍Customer agrees that Blackmedia will have the right to generate (i) data by aggregating Customer Activity Data with other data so that results are non-personally identifiable with respect to Customer or its end users; and (ii) capture anonymous learnings, logs, and data regarding use of the Intellimize Platform by Customer and its Authorized Users (collectively, the “Intellimize Anonymized Data”). Except as set forth herein, the parties agree that Blackmedia owns all rights, title, and interests in and to the Intellimize Anonymized Data, and that Blackmedia may use such Intellimize Anonymized Data for any business purpose during or after the Subscription Term, including without limitation to develop and improve the Intellimize Platform and to create and distribute reports and other materials, provided that Blackmedia does not distribute Intellimize Anonymized Data in a manner that personally identifies Customer or its end users.

7.4 Blackmedia Proprietary Rights

‍With regards to the Intellimize Platform, as between Blackmedia and Customer, Blackmedia exclusively owns all rights, title, and interests in and to the Intellimize Platform and the Third-Party Provider Activity Data, including (i) any improvements, enhancements and additional functionalities made by or for Blackmedia and (ii) any ideas, know-how, inventions, methods or techniques developed or conceived by Blackmedia as a result of providing the Intellimize Platform under the Agreement, including all patent rights (including, without limitation any Intellectual Property Rights therein). During the Subscription Term, Blackmedia grants Customer a non-exclusive, non-sublicensable, royalty-free, and revocable license to store, use, and access the Third-Party Provider Activity Data for Customer’s internal business purposes only.

7.5 Customer Proprietary Rights

‍With regards to the Intellimize Platform, as between Blackmedia and Customer, owns all rights, title and interests, including all Intellectual Property Rights, in and to the Customer Activity Data, but for clarity excluding the Third-Party Provider Activity Data. Customer grants Blackmedia and its service providers a non-exclusive, royalty-free, perpetual, and irrevocable license to store, use, modify, copy, distribute copies of and make derivative works based upon the Customer Activity Data, in connection with (i) provision of the Intellimize Platform for the benefit of Customer and its Authorized Users and (ii) improving and enhancing the functionality of the Intellimize Platform. For clarity, for the purposes of the Agreement, ( 1 ) Customer Activity Data shall constitute Customer’s Confidential Information, and ( 2 ) the Third-Party Provider Activity Data shall constitute Blackmedia’s Confidential Information. Notwithstanding any other term of the Agreement, Blackmedia’s exercise of its rights to the Customer Activity Data as described herein will not be a breach of its confidentiality obligations under the Agreement.

7.6 Indemnification

‍Customer shall indemnify, defend, and hold harmless Blackmedia (including its Affiliates and its and their members, officers, directors, managers, employees, agents, successors, and permitted assigns) from and against any Losses arising from or relating to a third-party claim, suit, or action in connection with Customer’s use of the Intellimize Platform.

8. Miscellaneous

In the event of any conflict between the Agreement and the applicable terms and conditions of these Product Terms, the applicable terms and conditions of these Product Terms shall govern, but solely with respect to such conflict. All other terms and conditions of the Agreement not expressly modified by these Product Terms shall remain in full force and effect. The applicable terms and conditions of these Product Terms, together with the Agreement, set forth the final, complete, and exclusive agreement between the parties relating to the subject matter hereof, and supersede any other agreements or communications relating thereto. Blackmedia may, in its sole discretion, modify, or update these Product Terms from time to time in the usual course of business (e.g., when we modify or introduce any new Additional Product Offering). Blackmedia will provide you with notice of any material changes, modifications, or updates to these Product Terms through your email Blackmedia has on file, through the Platform, and/or by updating the date at the top of these Product Terms, in Blackmedia’s discretion. You are responsible for updating and maintaining your current contact information through the Platform and reviewing the Product Terms applicable to Additional Product Offerings you use regularly for updates. Your continued use of any of these Additional Product Offerings after any such modifications or updates shall constitute your consent to such changes.