THIS TERMS AND CONDITIONS AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY BOOST APP, INC. (“BOOST”), AND THE CUSTOMER (“CUSTOMER”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING THE “ACCEPT” BUTTON. BY CLICKING THE “ACCEPT” BUTTON, YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
FOR GOOD AND VALUABLE CONSIDERATION, THE PARTIES HEREBY AGREE AS FOLLOWS:
1.1. Subscription Services. Provided that Customer complies with all terms and conditions of this Agreement, Boost grants Customer a non-exclusive, limited, terminable, non-transferable right to access and use the Subscription Services to service the Customer’s End Users. Boost reserves all rights not expressly granted to Customer under this Agreement. Boost shall provide the Support Services for the Subscription Services.
1. 2 Restrictions. Customer shall use the Subscription Services only to process its own data or data from End Users in the conduct of Customer’s business. Customer shall not use the Subscription Services in a service bureau environment or provide outsourcing services to third parties in a manner that would diminish the need for such third parties to subscribe to the Subscription Services directly. For avoidance of doubt, use of the Subscription Services by Customer to provide services to End Users shall not be a violation of the foregoing sentence. Customer shall not use, provide access to or otherwise exploit any Boost Technology or Boost Confidential Information in any way that would replace Boost’s products or services, or directly or indirectly compete with the Boost’s products and services. Customer also shall not permit or enable any other person to do any of the foregoing. Customer shall not use the Subscription Services in a manner that violates any applicable Federal, state or local law, rule or regulation. Boost is under no obligation to review Customer’s use of the Subscription Services for potential liability. If Customer or any End User misuses or abuses the Subscription Services, Boost, at its sole discretion, may terminate Customer’s or such End User’s access to the Subscription Services. If Customer becomes aware of any misuse of the Subscription Services, the Boost website, passwords, or data, Customer shall promptly inform Boost of such misuse and take reasonable steps to halt the misuse promptly and/or cooperate with Boost to halt such misuse. In using the Subscription Services, Customer shall fully comply with the terms and conditions of this Agreement and the “Acceptable Use Policy” included herein Exhibit B, which may be amended from time-to-time by Boost. Boost will notify Customer in writing at least thirty (30) days in advance of the effective date of amendments to the Acceptable Use Policy. Such amendments will take effect on the date identified by Boost in its notice to Customer, provided that if Customer notifies Boost in writing of an objection to the Acceptable Use Policy amendment prior to the date the Acceptable Use Policy amendment takes effect, the effective date of the Acceptable Use Policy amendment will be deferred until the first day of the next Renewal Term.
1.3 Third Party Products. Customer may access and use Third Party Products only in conjunction with Customer’s use of the Subscription Services. Each Third Party Product is provided subject to the applicable Third Party Product Agreement, and Customer shall abide by all such Third Party Product Agreements. OTHER THAN WARRANTIES PROVIDED UNDER THE APPLICABLE THIRD PARTY PRODUCT AGREEMENTS, THIRD PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES FROM BOOST OF ANY KIND, EXPRESS OR IMPLIED, AND BOOST EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES.
2. Term; Termination.
This Agreement shall take effect on the Effective Date and continue in effect until ended by either Party. This Agreement may be terminated by either party (a) upon thirty (30) days prior written notice to the other party in the event the other party breaches this Agreement and does not cure such breach within said thirty (30) day period; or (b) if the other party ceases to do business in the normal course, becomes or is being declared insolvent or bankrupt, is the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or makes an assignment for the benefit of its creditors. Upon termination of this Agreement all Services hereunder shall immediately terminate. Upon termination of this Agreement, Boost will return or destroy all Customer Data in its possession (excluding Reference Data), and each party will return or destroy all Confidential Information belonging to the other party. The term for each Service will be set forth in the applicable Order Form for such Service.
3. Customer Data; Security
3.1 Customer Data. To facilitate the provision of Services to Customer, Customer will provide Customer Data to Boost as described in the applicable Order Form or as otherwise requested by Boost, in the format and specifications designated by Boost. Customer is the owner and data controller of all Customer Data. Customer hereby grants to Boost a non-exclusive license to use, copy and manipulate the Customer Data, in whole or in part, in connection with the Services and related product and service activities; to perform research and development activities and statistical analysis with the Customer Data; to develop analytic models using the Customer Data; to aggregate, analyze, de-identify, and use such aggregated, analyzed, and de-identified Customer Data; to combine or incorporate the Customer Data with other data to create the Reference Data; and to develop and provide other products and services. The Reference Data shall belong to Boost, and Boost shall have the right to retain and use the Reference Data. Customer is solely responsible for the accuracy and integrity of its Customer Data as delivered to Boost and for adopting procedures to identify and correct errors and omissions in such Customer Data. Customer represents and covenants that it will not provide, post or transmit any data in a manner that violates any applicable Federal, state or local law, rule or regulation, or that infringes or violates any third party’s patent rights, trademark rights, copyrights, trade secret rights, intellectual property rights, contractual rights, publicity/privacy rights, or that contains any viruses, malware, or worms intended to damage, interrupt or misappropriate the Subscription Services. Boost is under no obligation to review Customer Data for accuracy or potential third-party liability.
3.2 Usernames and Passwords. Access to the Subscription Services by Customer and End Users is accomplished through the use of usernames and passwords and/or additional authentication factors. Customer and End Users shall keep such usernames and passwords and/or additional authentication factors strictly confidential to prevent unauthorized use. Customer shall be liable for any use of the Subscription Services or access to Customer Data using a username and password and/or additional authentication factor associated with Customer or any End User. Each party will promptly notify the other of any unauthorized access to and/or use of usernames and passwords and/or additional authentication factors associated with Customer or any End User and use all reasonable efforts to take prompt remedial measures to rectify such unauthorized access and/or use.
3.3 Security. Boost will take commercially reasonable steps and measures in accordance with prevailing practices in the software-as-a-service industry to maintain and enforce physical and logical security with respect to the Customer Data, but Boost makes no guarantee that the Customer Data will be secure from all threats. Boost may transmit or provide access to Customer Data to a third party that is assisting in the provision of Services under this Agreement, provided that Boost will include security terms similar to this Section 3.3 in its contract with any third party accessing Customer Data in order to provide the Services. Boost will report to Customer any confirmed security breach or unauthorized access affecting Customer Data of which Boost detects or becomes aware. Boost will use diligent efforts to remedy any breach of security or unauthorized access. Boost reserves the right to temporarily suspend Customer’s access to the Subscription Services in the event of a suspected security breach, without any liability to Customer. In the event that Boost must perform additional services with respect to a security breach or unauthorized access affecting Customer Data caused by an act or omission of Customer or an End User, Boost shall be compensated by Customer at Boost’s then-current rates for such services.
4. Intellectual Property Rights and Confidentiality.
4.1 Each party to this Agreement retains exclusive ownership and rights to its trade secrets, inventions, copyrights, and other intellectual property, and nothing in this Agreement grants any right or license therein to the other party. Boost shall exclusively own all right, title and interest in and to the Boost Technology. Each party agrees to keep confidential all information concerning the other party’s business or its ideas, products, customers, end users or services that could be considered to be Confidential Information. “Confidential Information” includes any information belonging to, or in the possession or control of, a party that is marked confidential or proprietary when disclosed to the other party, or, if orally disclosed, is documented in writing to the other party within ten (10) days of the date of disclosure identifying the disclosure as confidential. Confidential Information does not include any information in the public domain by means other than a breach of this provision by the receiving party, information independently developed by the receiving party, or if required by a court or governmental body to be disclosed; provided, however, that as to the latter, the owner of the Confidential Information is given notice of the requirement of such disclosure in a timely manner to permit the owner to challenge and/or restrict such disclosure.
4.2 “Education Record” has the meaning given at 20 U.S.C. § 1232g(a)(4). “FERPA Data” means all Education Records received by Boost App from a Customer or an End User. Boost App will use the FERPA Data only for the purpose of fulfilling its obligation under this Agreement and providing the Services to a Customer, and will not use, share, sell, or disclose such FERPA Data to any third party except as permitted by this Agreement, permitted by applicable law, or as otherwise authorized by Customer in writing. Boost App shall (i) treat as confidential all FERPA Data; (ii) not use such FERPA Data except as required to provide the Services to a Customer as contemplated herein, or as otherwise authorized by the Customer in writing; (iii) implement reasonable procedures to prohibit the disclosure, unauthorized duplication or use, or removal of such FERPA Data; and (iv) not disclose such FERPA Data to any third party, except as specifically permitted by this Agreement or the Customer in writing. Without limiting the foregoing, Boost App shall use at least the same procedures and degree of care to prevent the disclosure of FERPA Data as it uses to prevent the disclosure of its own confidential information of like importance, and shall in any event use no less than reasonable procedures and a reasonable degree of care. Upon becoming aware that any FERPA Data has been used or disclosed in a manner not permitted by (i) the Agreement, (ii) another written agreement between the parties, or (iii) any applicable state or federal law, Boost App will report any such use or disclosure to Customer promptly upon being aware of the breach, and take such corrective steps to remedy the breach and mitigate its effects as reasonably requested by Customer. In the event of, and to the extent of, any conflict between this Section 4.2 and the other terms of this Agreement, this Section 4.2 shall control where the issue pertains to FERPA Data, and the other terms of this Agreement shall control in all other cases.
5. Warranties; Limitation of Liability.
5.1 During the Term of this Agreement, Boost warrants that the Subscription Services will operate in conformance with the applicable documentation therefor. Should Customer identify a failure of the Services to conform to the foregoing warranties, Customer must notify Boost in writing within thirty (30) days after the defective Services were performed. Boost’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, in the event of a breach of the foregoing warranties shall be the re-performance of the Services, or the correction or replacement of the Subscription Services, at no additional cost to Customer.
5.2 THERE ARE NO REPRESENTATIONS, PROMISES, WARRANTIES OR UNDERSTANDINGS RELIED UPON BY CUSTOMER THAT ARE NOT CONTAINED IN THIS AGREEMENT. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, ALL SERVICES PROVIDED BY BOOST HEREUNDER ARE PERFORMED AND PROVIDED “AS IS” AND “AS AVAILABLE,” AND BOOST DISCLAIMS ALL OTHER WARRANTIES WITH REGARD TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE, ACCURACY, CORRECTNESS, COMPLETENESS, OR FITNESS FOR A PARTICULAR PURPOSE. BOOST DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DATA STORED PURSUANT TO THE SERVICES WILL NOT BE LOST. IN NO EVENT SHALL BOOST BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, WORK STOPPAGE, DATA LOSS, LOST PROFIT, OR COMPUTER FAILURE, REGARDLESS OF THE THEORY OF LAW AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT BOOST HAS NO LIABILITY, DIRECT OR INDIRECT AND REGARDLESS OF THE THEORY OF LAW, FOR ANY THIRD PARTY PRODUCT. IN NO EVENT SHALL BOOST’S LIABILITY HEREUNDER, REGARDLESS OF THE THEORY OF LAW, EXCEED THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE AMOUNT PAID TO BOOST UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM, IF ANY. BOOST SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCURRED BY CUSTOMER IN CONNECTION WITH ANY UNAUTHORIZED ACCESS TO CUSTOMER DATA RESULTING FROM THE ACTIONS OR OMISSIONS OF CUSTOMER OR AN END USER, OR FROM THE FAILURE OF ANY SECURITY MEASURES EXCEPT TO THE EXTENT SUCH A FAILURE OF SECURITY MEASURES IS CAUSED BY BOOST’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
5.3 Boost shall not be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of Boost, including, but not restricted to, failure of Internet or communication lines, criminal acts, severe weather, earthquakes, labor disputes, fire, flood, explosion, act of God, terrorist attack, war, insurrection, riot, government regulation or act, vandalism, strike, and failure of power supply.
6.1 Boost will indemnify, defend and hold Customer harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from a claim or assertion by any third party that the access and use by Customer or an End User of Subscription Services in the manner provided for in this Agreement infringes or misappropriates that third party’s U.S. copyright or trade secret rights. Notwithstanding the forgoing, Boost shall have no obligations under the forgoing sentence if such third party claim arises as a result of: (i) a modification of or a derivative work created from the Subscription Services by someone other than Boost or its authorized agents; (ii) the use of the Subscription Services in a manner that is not authorized under this Agreement; (iii) a combination of the Subscription Services with any other hardware, equipment, software, or other technology not provided by Boost; (iv) any Customer Data and/or FERPA Data; and/or (v) any change that Boost makes to the Subscription Services to meet the specifications provided by Customer. Further, in the event such a claim arises or Boost suspects such a claim will arise, Boost shall at its sole option: (i) modify the Subscription Services in a manner that causes the Subscription Services not to infringe, misappropriate or otherwise violate such third party’s rights; (ii) obtain the right for Customer to continue to use the Subscription Services as provided under this Agreement; or (iii) immediately terminate this Agreement upon providing notice to Customer. Customer acknowledges and agrees that this Section 6.1 sets forth Customer’s sole and exclusive remedy as it relates to any claim of or actual infringement, misappropriation or violation of a third party’s intellectual property right that arises from or relates to the Services.
6.2 Customer will indemnify, defend and hold Boost harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) Customer’s violation of any Federal, state or local law, rule or regulation; or (b) any act or omission by Customer, End Users, and/or End Users in accessing and using the Subscription Services in a manner not permitted under this Agreement.
7. General Provisions. The parties acknowledge and agree that Boost is an independent contractor of Customer, and nothing in this Agreement shall be construed to create an agency, partnership, joint venture, or employment relationship between Boost and Customer. Boost may use contractors to assist in the provision of the Services or provide certain of the Services through a third party; provided Boost remains responsible for such Services. In the event of any conflict or inconsistency between the main body of this MSA and any Order Form, the terms of the main body of this MSA, and then the Order Form, will control solely with respect to such conflict or inconsistency, unless the Order Form expressly states that such provision in the Order Form shall control over the MSA. The terms and conditions of this Agreement are confidential. This Agreement shall be construed and interpreted in accordance with the laws of the State of Indiana, as such laws are applied to agreements entered into and to be performed entirely within Indiana between Indiana residents. Any proceeding arising from this Agreement shall be exclusively brought and exclusively maintained in a state or federal court situated in Marion County, Indiana, and each of the parties hereby consents to and waives any objections to personal jurisdiction of, and venue in, such courts. Sections 4, 5, 6, 7, and 9 shall all survive expiration or termination of this Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement supersedes any and all other agreements between the parties, either written or oral. This Agreement may only be modified in writing signed by both parties. All notices shall be considered given upon receipt and only if mailed by certified or registered mail or overnight delivery to the parties’ principle address. Waiver by either party of any breach, or failure to enforce any of the terms or conditions of this Agreement, at any time, shall not limit or affect that party’s right to enforce strict compliance with all other terms of this Agreement. Should any provision of this Agreement be held to be void, invalid, unenforceable, or illegal by a court of competent jurisdiction, the validity and unenforceability of the remaining provisions of the Agreement shall not be affected thereby. Neither party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the party who was to benefit from the performance of such act shall have the right to terminate the Agreement by giving written notice, according to this Agreement.
8. Assignment. A party may, without consent from the other party, assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under this Agreement. This Agreement will be binding on and inure to the benefit of the parties and their successors and permitted assigns. Except as otherwise provided in this Section 8, neither party may assign this Agreement without the prior written consent of the other party. Any unauthorized assignment will be null and void.
9. Taxes. To the extent that the Services provided hereunder are subject to any sales, use or other tax or fee related to this transaction, however designated (except taxes based on Boost’s net income), payment of such taxes, if any, is Customer’s responsibility. If the taxing authority seeks collection from Boost of any taxes in connection with this Agreement (except taxes based on Boost’s net income), then Customer shall reimburse Boost upon receipt of notice from Boost that Boost has paid such tax. Customer may provide a tax exemption number or affidavit of exemption, but Customer shall indemnify and hold Boost harmless for taxes, penalties and interest arising from claimed exemptions that are disallowed.
10. Definitions. Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout this Agreement.
10.1 “Customer Data” means any data that Customer or End Users upload to the Subscription Services.
10.2 “Effective Date” means the date the first Order Form between the parties is signed by authorized representatives of both Boost and Customer, unless such Order Form specifies another date as the Effective Date.
10.3 “End User” means any end user of the Subscription Services under this Agreement.
10.4 “Boost Technology” means the Services (and all of the underlying technology, software and analytics), any methods, algorithms, rules, models, APIs, discoveries, inventions, materials, ideas and other Work Product that is conceived, originated or prepared in connection with the Services provided by Boost, and all related intellectual property and proprietary rights.
10.5 “Initial Term” means the period of time specified as the Initial Term on the Order Form signed by both parties. If no Initial Term is specified on the Order Form the Initial Term shall be a period of one (1) year.
10.6 “Reference Data means data that does not identify Customer or any specific individual.
10.7 “Renewal Term” means a period of one (1) year.
10.8 “Services” means Subscription Services and the Support Services.
10.9 “Subscription Services” means the Boost platform products as described in the Order Form, and any documentation that accompanies such products.
10.10 “Support Services” means the provision by Boost to Customer of reasonable assistance and consultation, via email or Boost’s online support tool, to assist Customer in answering questions or in resolving problems encountered with the Subscription Services.
10.11 “Term” means, collectively, the Initial Term and all Renewal Terms.
10.12 “Third Party Product” means any product and/or service identified on an Order Form as being provided to Customer by a third party in conjunction with the Subscription Services.
10.13 “Third Party Product Agreement” means the terms and conditions applicable to a Third Party Product that govern Customer’s access to and use of such Third Party Product.