Terms and Conditions
Boostpoint Software as a Service (“SAAS”) Agreement
BY ACCEPTING THIS AGREEMENT OR USING THE BOOSTPOINT STREAMLINED AD PLATFORM (AS DEFINED BELOW), YOU (“CUSTOMER”) AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, 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 THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BOOSTPOINT PLATFORM.
- “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.
- “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.
- “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.
- “Documentation” means Boostpoint’s user manuals, handbooks, and guides relating to the Services provided by Boostpoint to Customer either electronically or in hard copy form/end user documentation relating to the Services available at [URL].
- “Boostpoint IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. 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.
- “Services” means the Boost Point Streamlined Ad Platform as such may be updated or modified from time to time. The Services includes the Work Product and the Services Data, as hereafter defined.
- “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.
- “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.
- Access and Use.
- Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Boostpoint hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business use.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Boostpoint hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
- Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users 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; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- 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.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Boostpoint may temporarily suspend or revoke Customer’s and any Authorized User’s access to any portion or all of the Services 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 End 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 has suspended or terminated Boostpoint’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer defaults on any payment obligation or any other term or condition of this Agreement.
- 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 input into the Services. Customer agrees that Boostpoint may (i) make Aggregated Statistics publicly available in compliance with 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.
- 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 act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
- Fees and Payment.
- Fees. Customer shall pay Boostpoint the fees (“Fees”) set forth in Boostpoint’s current fee schedule, as such may be modified or updated from time to time, without offset or deduction. All Fees shall be paid in US dollars on or before the due date set forth in the fee schedule, and shall be made by credit card or other approved payment method.
- 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, 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 on any amounts payable by Customer hereunder, other than any taxes imposed on Boostpoint’s income.
- Confidential Information. From time to time during the Term of this Agreement, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) 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. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) 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 the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. 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 certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information will expire five years from the date the Confidential Information is first disclosed to the receiving Party; provided, however, with respect to any 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.
- Intellectual Property Ownership.
- 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.
- 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, 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.
- Limited Warranty and Warranty Disclaimer.
- 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. Boostpoint does not make any representations or guarantees regarding uptime or availability of the Services.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH 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 PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER 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.
- Boostpoint Indemnification.
- Boostpoint shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Customer resulting from any third-party claim, suit, action, or proceeding that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Boostpoint in writing of the claim, cooperates with Boostpoint, and allows Boostpoint sole authority to control the defense and settlement of such claim.
- If such a claim is made or threatened, 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. If Boostpoint determines that neither alternative is reasonably available, 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.
- Boostpoint’s obligation of indemnification under this section will not apply to the extent that the alleged infringement 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 writing; (B) modifications to the Services not made by Boostpoint; or (C) Customer Content.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Boostpoint’s option, defend Boostpoint from and against any Losses resulting from any Third-Party Claim 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 rights and any Third-Party Claims based on 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; or (iv) modifications to the Services not made by Boostpoint, provided that Customer may not settle any Third-Party Claim against Boostpoint unless Boostpoint consents to such settlement, and further provided that Boostpoint will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND BOOSTPOINT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL BOOSTPOINT’S LIABILITY UNDER THIS SECTION 9 EXCEED $[AMOUNT].
- 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, AND 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, INABILITY TO USE, LOSS, INTERRUPTION, 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, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BOOSTPOINT UNDER THIS AGREEMENT IN THE ONE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Entire Agreement. This Agreement, as modified from time to time, 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.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing. 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.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any 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.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of [STATE] 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 State of [STATE]. Any legal suit, action, or proceeding arising out of [or related to] this Agreement or the licenses granted hereunder [will/may] be instituted [exclusively] in the federal courts of the United States or the courts of the State of [STATE] in each case located in the city of [CITY] and County of [COUNTY], and each Party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Boostpoint [, which consent shall not be unreasonably withheld, conditioned, or delayed]. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- 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.
- US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), 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 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, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
A. DESCRIPTION OF SERVICES: [DESCRIPTION]
B. FEES: [FEES AND CORRESPONDING SUBSCRIPTION PERIOD LENGTH, PAYMENT REQUIREMENTS, INCLUDING INVOICING AND ANY RENEWAL FEE NOTIFICATION PROCESS OR RENEWAL FEE INCREASE LIMITATIONS.]
C. [AUTHORIZED USERS: [NUMBER]]
D. [THIRD-PARTY PRODUCTS: [DESCRIPTION, FLOW THROUGH PROVISIONS, URL LINKS TO LICENSES.]]