Terms & Conditions

Boostpoint Software as a Service (“SAAS”) Agreement

Last Updated:  [07.14.2021]

This Boostpoint Software as a Service Agreement (this “Agreement”) is an agreement between Boostpoint, Inc., a Pennsylvania corporation having a place of business at 117 S West End Ave Lancaster PA 17603 (“Boostpoint”), and the person or entity identified by Boostpoint as accessing or using the Services or Documentation (“you” or “Customer”).  

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING “ACCEPT” OR A SIMILAR BUTTON, OR ACCESSING OR USING THE SERVICES OR DOCUMENTATION, OR BY ENTERING INTO A QUOTE THAT REFERENCES THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE THE SERVICES OR DOCUMENTATION.

1. Definitions.
   1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Boostpoint in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
   2. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.  Authorized User does not mean a corporation, company, partnership, association, entity, or organization.
   3. “Customer Content” means information, data, and other content, in any form or medium that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
   4. “Documentation” means Boostpoint’s user manuals, handbooks, and guides relating to the Services, if any, which may be made available by Boostpoint electronically or as otherwise provided by Boostpoint to Customer.
   5. “Boostpoint IP” means the Services, the Documentation, and any and all copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets, and any other proprietary or intellectual property rights throughout the world that are associated with the Services or Documentation. For the avoidance of doubt, Boostpoint IP includes Aggregated Statistics and any information, data, or other content derived from Boostpoint’s monitoring of Customer’s access to or use of the Services, but does not include Customer Content.
   6. “Services” means the Boost Point Streamlined Ad Platform, as such may be updated, modified, improved, or customized from time to time. The Services include the Work Product and the Services Data, as hereafter defined.
   7. “Work Product” means all writings, images, logos, video, audio, html and other code, and all other content specifically created through Customer’s use of the Services, including all writings, images, logos, video, audio, and all other materials.
   8. “Services Data” means data that is tracked by the Services including data related to social media exposure, search engine optimization, customer feedback, web site hits, and other data and information related to the use and performance of the Work Product.
2. Access and Use.
   1. Provision of Access. Subject to and conditioned on Customer’s timely payment of Fees and compliance with all the terms and conditions of this Agreement, Boostpoint hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services during the Term, along with any accompanying Documentation, solely for use by Authorized Users for Customer’s internal business purposes.
   2. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Customer shall not at any time, directly or indirectly (and Customer shall not permit its employees, agents, independent contractors, or any other person or entity to): (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, or merge or bundle the Services with any other software, products or services; or (iv) remove any proprietary notices from the Services or Documentation.
   3. Reservation of Rights. Boostpoint reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Boostpoint IP.  Customer shall have no right to receive the source code for the Services.  Customer agrees not to contest Boostpoint’s title and intellectual property rights in the Boostpoint IP.
   4. Suspension. Notwithstanding anything to the contrary in this Agreement, Boostpoint may temporarily suspend or revoke Customer’s and/or any Authorized User’s access to any portion or all of the Services or Documentation if: (i) Boostpoint reasonably determines that (A) there is a threat or attack on any of the Boostpoint IP; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to any other party; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Boostpoint’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (ii) any vendor of Boostpoint, or any third-party product, service, or website that integrates with the Services (collectively “Third Party Applications”), has suspended or terminated Boostpoint’s access to,  use of, or integration with any such services or products required to enable Customer to access the Services or provide features of the Services; or (iii) Customer defaults on any payment obligation or any other term or condition of this Agreement.
   5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Boostpoint may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Boostpoint and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Boostpoint. Customer acknowledges that Boostpoint may compile Aggregated Statistics based on Customer Content processed by the Services. Customer agrees that Boostpoint may (i) make Aggregated Statistics publicly available, subject to any limitations imposed by applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users and any person or entity obtaining access through an Authorized User. Any act or omission by any of the foregoing that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause all Authorized Users to comply with such provisions.
4. Term and Termination.  This Agreement will begin on the date on which you accept this Agreement, and will continue until terminated as permitted by this Agreement.  Customer’s subscription to access and use the Services will commence on the “Go-Live Date” specified in a Quote signed by Customer and Boostpoint (a “Quote”), or, if you register for the Services via Boostpoint.com, for the duration of the subscription plan you select in connection with your registration for the Services (the “Initial Services Term”, and each such Quote or Services registration, a “Service Agreement”).  At the end of the Initial Services Term, the Service Agreement, and your subscription to the Services, will automatically renew for successive additional periods of the same duration as the Initial Services Term (each, a “Renewal Services Term”), at Boostpoint’s then-current pricing for such Services, unless either party notifies the other in writing of its intent not to renew this Agreement at least thirty (30) days prior to the end of the Initial Services Term or Renewal Services Term, as applicable.  The Initial Services Term and any Renewal Services Terms are collectively referred to as the “Term”.  Either party may immediately terminate this Agreement upon written notice to the other in the event that the other party breaches any material term of this Agreement and such breach is not cured within fourteen (14) days after written notice from the terminating party.  In the event that Boostpoint terminates this Agreement for a material or willful breach, all amounts due under this Agreement shall immediately become due and payable.  Boostpoint shall also have the right to suspend the Services as provided in Section 2(d) above.  Either Party may terminate this Agreement upon written notice to the other Party in the event that all outstanding Service Agreements have expired or terminated.  Upon termination of this Agreement for any reason, all licenses granted to Customer will terminate, and Boostpoint may remove any Customer Content from the Services.  
5. Fees and Payment.
   1. Fees. Customer shall pay Boostpoint (1) the fees set forth in a Quote or in Boostpoint’s current fee schedule for the subscription plan selected by Customer in connection with Customer’s registration for the Services via Boostpoint.com, as applicable (“Subscription Fees”); and (2) the fees for the placement of advertising with each applicable social media publisher, which amounts include Boostpoint’s agency commission for the placement of such advertising (collectively, “Ad Fees”, and together with the Subscription Fees, collectively, the “Fees”),  as each may be modified or updated from time to time. Customer may pre-purchase credits to be applied to Ad Fees (“Ad Credits”).  Customer shall pay all Fees without offset or deduction. Customer acknowledges and agrees that (i) Subscription Fees are based on Services subscriptions purchased, and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, except as expressly set forth in this Agreement, and (iii) quantities purchased cannot be decreased during the relevant subscription term of the applicable Service Agreement, and unused Ad Credits are non-refundable and cannot be cannot be sold, traded, transferred, or exchanged for cash.  All Fees shall be paid in US dollars on or before the due date set forth in the relevant Service Agreement, and shall be made by credit card or other payment method approved by Boostpoint.  Boostpoint may charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is less. In the event that Boostpoint must utilize a collection agency or institute legal proceedings to collect any Fees or other amounts due under this Agreement, Customer shall be liable for all reasonable attorneys’ fees, agency costs, and other costs associated therewith.
   2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, value added, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority arising out of or in connection with this Agreement or a Service Agreement, other than any taxes imposed on Boostpoint’s income.
6. Confidential Information. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) certain Confidential Information (as defined below) of the Disclosing Party.  “Confidential Information” includes documents, data, software, and information which, when provided by the Disclosing Party to the Receiving Party: (i) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; (ii) are disclosed orally or visually, and identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) business days; or (iii) a reasonable person would understand to be confidential or proprietary at the time of disclosure.  The Services and Documentation, as well as results of benchmark and other tests run by either party and resulting from use of the Services, shall be deemed Boostpoint Confidential Information without any need for any markings or legends, and in addition to the other restrictions in this Section 5, shall not be disclosed to any competitor of Boostpoint. Confidential Information does not include information that the Receiving Party can demonstrate by written documentation was, at the time of disclosure: (a) in the public domain; (b) already known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees and service providers who are bound by confidentiality agreements with terms no less restrictive than those of this Section 5 and have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Receiving Party making the disclosure pursuant to the order shall, if permitted by law, give prompt prior written notice to the Disclosing Party and cooperate reasonably with the Disclosing Party’s  efforts to obtain a protective order; or (2) to establish a Party’s rights under this Agreement, including to make required court filings. The Receiving Party shall use at least the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party generally exercises in protecting its own information of a similar nature, and shall inform its employees and contractors having access to the Disclosing Party’s Confidential Information of its confidential nature. In no event shall the Receiving Party use less than a commercially reasonable degree of care in protecting the Disclosing Party’s Confidential Information.  On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and, upon request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Receiving Party’s obligations of non-disclosure with regard to the Disclosing Party’s Confidential Information will expire five years from the date the Disclosing Party’s Confidential Information is first disclosed to the Receiving Party; provided, however, with respect to any such Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership.
   1. Boostpoint IP. Customer acknowledges that, as between Customer and Boostpoint, Boostpoint owns all right, title, and interest, including all intellectual property rights, in and to the Boostpoint IP.
   2. Customer Content. Boostpoint acknowledges that, as between Boostpoint and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Content. Customer hereby grants to Boostpoint a non-exclusive, royalty-free, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to Boostpoint’s service providers, as deemed necessary to provide services to Boostpoint) worldwide license to reproduce, distribute, and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for Boostpoint to provide the Services to Customer.
8. Limited Warranty and Warranty Disclaimer.
   1. Boostpoint Warranty.  Boostpoint warrants that the Services will conform in all material respects to the specifications set forth in the Documentation when the Services are accessed and used in accordance with the Documentation (the “Product Warranty”). As Customer’s sole and exclusive remedy, and Boostpoint’s sole liability, for any breach of the Product Warranty reported by Customer, Boostpoint shall (i) take reasonable steps to correct or repair the Services so that they substantially conforms to their applicable Documentation, or (ii) if such correction or repair cannot be effectuated within a reasonable time, as determined by Boostpoint, terminate Customer’s subscription and refund to Customer any prepaid, unused Fees for the Services, pro-rated by day to the effective date of termination.  Boostpoint shall not be obligated to remedy any outage, failure, or defect in the Services that cannot be adequately repeated.  The Product Warranty also does not apply to any outage, failure or defect in the Services that results from (1) Customer’s failure to maintain the proper production environment to access and use the Services (including any failure to maintain the systems and applications required by the Documentation), (2) use of the Services in a manner or for a purpose not expressly permitted in this Agreement or the Documentation, (3) failures of Customer or third-party hardware, software, equipment or networks (including Third Party Applications), or (4) a Force Majeure Event (as defined in Section 11(i) below).  
   2. Customer Warranty.  Customer represents and warrants to Boostpoint that: (i) Customer has all rights, licenses, consents, and permissions necessary to grant the license set forth in Section 7(b) above; (ii) Customer and its Authorized Users shall at all times comply with any laws, rules, and regulations applicable to their activities in connection with this Agreement; and (iii) Customer and the Authorized Users shall not upload, submit, store, publish, distribute, or process any unlawful, infringing, or libelous content, material, or data through the Services, or any content or material that contains viruses, worms, Trojan horses, malware or other surreptitious, harmful or invasive code.
   3. Advertising efforts are dynamic undertakings that involve many influences and factors, of which Boostpoint’s Services are merely one. Customer acknowledges that Boostpoint makes no representations or warranties concerning the impact of the Services, the number of times Customer Content will be displayed and viewed, the number of impressions, clicks or other actions that will be generated through Customer Content, or the availability of any particular category of inventory or any particular publisher’s inventory for the display of Customer Content.  For the avoidance of doubt, Customer acknowledges that it is not purchasing “leads” from Boostpoint.  Any estimates or projections provided by Boostpoint are solely illustrative and shall not be construed to be a guarantee by Boostpoint.    
   4. WITHOUT LIMITING ANYTHING IN SECTION 8(C):  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a) ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND BOOSTPOINT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BOOSTPOINT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BOOSTPOINT MAKES NO WARRANTY OF ANY KIND THAT THE BOOSTPOINT IP, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR DOWNTIME, ACHIEVE ANY INTENDED RESULT OR REVENUE, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  NO STATEMENT WHETHER MADE BY BOOSTPOINT’S EMPLOYEES, AGENTS, OR OTHERWISE SHALL BE DEEMED TO BE A WARRANTY BY BOOSTPOINT FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF BOOSTPOINT.  
9. Indemnification.
   1. Boostpoint Indemnification.
      1. Boostpoint shall indemnify, defend, and hold harmless Customer from and against any and all out-of-pocket losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by Customer resulting from any third-party claim, suit, action, or proceeding due to  the infringement or misappropriation of such third party’s valid U.S. intellectual property rights by the Services, as provide by Boostpoint to Customer and used by Customer in accordance with this Agreement.
      2. Should the Services become, or in Boostpoint’s opinion are likely to become, subject to a claim of infringement, Customer agrees to permit Boostpoint, at Boostpoint’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. Notwithstanding the foregoing, if Boostpoint, in its sole discretion, determines that neither alternative is reasonably available to it, Boostpoint may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and with no further liability to Customer.
      3. Notwithstanding the foregoing, Boostpoint will have no liability or obligation to Customer with respect to any infringement claim that arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Boostpoint or authorized by Boostpoint in advance in writing; (B) modifications to the Services not made by Boostpoint; (C) Customer Content or specifications provided by Customer, or any Third Party Applications, (D) use of the Services after Boostpoint notifies Customer, pursuant to subsection (ii) above, to discontinue use of the Services due to a potential or alleged infringement; or (E) use of the Services for a purpose other than that for which they were designed.
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Boostpoint’s option, defend Boostpoint from and against any and all out-of-pocket losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or relating to any third-party claim, suit, action, or proceeding   (1) alleging that the Customer Content, or any use of the Customer Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property, privacy, or other proprietary rights, and/or (2) alleging facts that, if true, would constitute Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Boostpoint or authorized by Boostpoint in writing; (iv) modifications to the Services by Customer, Authorized Users, or any person obtaining access through Customer or an Authorized User; or (v) Customer’s breach of its representations and warranties in this Agreement.
   3. The foregoing indemnification obligations of each indemnifying party will be dependent on the indemnified party: (i) providing the indemnifying party with prompt written notice of the claim (provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is materially prejudiced thereby); (ii) permitting the indemnifying party to control the defense and settlement of the claim; (iii) refraining from entering into any settlement or compromise of any such claim without approval of the indemnifying party; (iv) providing the indemnifying party with reasonable information and assistance for the defense or settlement of the claim, at the indemnifying party’s expense; and (v) using all commercially reasonable efforts to mitigate any loss, damage, or costs related to the claim.
   4. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND BOOSTPOINT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR THEIR USE INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 
10. Limitations of Liability. IN NO EVENT WILL BOOSTPOINT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE OF, INABILITY TO USE, LOSS OF, INTERRUPTION OF, DELAY OR RECOVERY OF, ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BOOSTPOINT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BOOSTPOINT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO BOOSTPOINT UNDER THIS AGREEMENT IN THE ONE (1) MONTH PERIOD PRECEDING THE DATE UPON WHICH THE LAST CLAIM OR DAMAGE AROSE.  CUSTOMER AGREES THAT THE DISCLAIMER OF WARRANTIES IN SECTION 8(C) AND 8(D), AND THE LIMITATIONS OF LIABILITY IN THIS SECTION 10, ARE A MATERIAL INDUCEMENT AND CONSIDERATION FOR BOOSTPOINT TO ENTER INTO THIS AGREEMENT AND PROVIDE THE SERVICES AT THEIR CURRENT PRICING.  ACCORDINGLY, SUCH PROVISIONS SHALL BE ENFORCED AS WRITTEN EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 
11. Miscellaneous.
    1. Entire Agreement. This Agreement, as modified from time to time, and any Quote entered into by the Parties, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    2. Amendment and Modification; Waiver. Boostpoint may modify this Agreement from time to time by posting an updated version of this Agreement on Boostpoint’s website or sending notice of the change to Customer via e-mail at the e-mail address currently associated with Customer’s account. By continuing to use the Services after Boostpoint makes these modifications, Customer agrees that it will be subject to the modified Agreement with respect to Service Agreement entered into on or after the date of the modification; however, Boostpoint will not apply the modifications to the Agreement retroactively to Service Agreements entered into before the date of the modification unless Customer affirmatively consents.  Boostpoint recommends that Customer periodically check the “Last Updated” date of this Agreement as posted on Boostpoint website in order to keep apprised of any changes.  Except as expressly provided herein, the Agreement may only be changed in a writing signed by authorized representatives of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    3. Severability. If any provision of this Agreement is deemed invalid, illegal, or unenforceable by any court of competent jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    4. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect 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 Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania, in each case located in the city of Philadelphia and County of Philadelphia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    5. Assignment. Neither party may assign this Agreement, in whole or in part, to any third party or agency without the prior written consent of the other party.  Notwithstanding the foregoing, either party may assign this Agreement without consent to a successor (by merger, consolidation, purchase of assets, reorganization or otherwise) to substantially all of the assets or business of the business unit to which this Agreement relates.  Boostpoint may also, without notice, utilize subcontractors and agents to provide aspects of the Services, provided, however, that Boostpoint shall remain primarily responsible for compliance with its obligations under this Agreement.  Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    6. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
    7. US Government Rights. The Services and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of this Agreement. Use, duplication or disclosure by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
    8. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 5, 6, or, in the case of Customer, Section 2(b), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    9. Force Majeure.  Neither party shall be liable to the other, following notice thereof, for any failure or delay in the performance of its obligations (except for required payments and the parties’ obligations pursuant to Section 2(b), 5, and 6 above) for any cause that is beyond the reasonable control of such party, including, without limitation, acts of God, shortages of supplies, labor or materials, strikes and other labor disputes, storms, floods, acts of war or terrorism, third-party hacking and other criminal or malicious activities, utility brown-outs, failures of telecommunications or the Internet, epidemics, pandemics, public health crisis (including, but not limited to, COVID-19), and actions by a governmental authority (such as changes in government codes, ordinances, laws, rules, regulations, or restrictions) (collectively, “Force Majeure Events”).  For the avoidance of doubt, Force Majeure Events do not include economic hardship, changes in market conditions, and/or insufficiency of funds, including to the extent caused by or resulting from any of the circumstances described in this section.
    10. No Agency.  The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
    11. Press Release.  Boostpoint may issue a press release regarding Customer’s entry into this Agreement and use of the Services.  Boostpoint may also refer to Customer as a customer or user of the Services in marketing materials, trade shows, and other promotional or industry-focused communications, and on Boostpoint’s website.
    12. All notices shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment or confirmation of delivery of e-mail or facsimile transmission.  Notices to Boostpoint shall be sent to the address set forth in the preamble to this Agreement (or such other address as Boostpoint designates by notice sent pursuant to this paragraph), and shall be addressed to Boostpoint’s CEO.  All notices to Customer may be sent to the latest business or e-mail address associated with Customer’s account.