PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (Boma Technologies Limited). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are so important though that we cannot provide these services unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms and if you subscribe to our Marketing Product or CRM, we will let you know when we do.
The ‘General Terms’ below set out the provisions that apply to our product
“Billable Users” means those types of Users (defined below) for which we charge you fees as set forth on our Pricing Page.
“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Contact” means a single customer, prospect, lead, or other individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“Email Send Limit” means the number of emails that you may send in any given calendar month. For our Starter Product this limit is equal to ten (10) times the Maximum Contacts number per month. For Starter Plus this is equal to four (4) times the Maximum Contacts number per month. For Pro this is equal to two (2) times the Maximum Contacts number per month. You can increase your monthly email quotas by purchasing additional email packages as set out in the ‘Customise Your Plan’ section of the pricing page.
“Enrichment Data” means the data we make available to you as part of the Subscription Service, including data you may provide to us as described in the ‘Company Data’ section in the ‘CRM’ provisions below. Enrichment Data also includes information about Users, such as social media handles, avatars, and alternate email address, that we obtain from public or third party sources.
“Boma Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
“Maximum Contacts” means the maximum number of Contacts you are permitted to use with the Subscription Service as identified in your Order Form, plus any Contacts added as part of an upgrade.
“Order Form” or “Order” means the Boma-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process or via in-app purchase. The purchase form may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
“Pricing Page” means http://www.bomamarketing.com/pricing.
“Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
“Site Visit” or “Visit” means interaction with your website by a single visitor in a single session.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Service” means all of our web-based inbound marketing and sales applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via http://bomamarketing.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Boma apps available from, for example, the following: our integrations products page, partner directory, template marketplace, links made available through the Subscription Service and non-Boma services listed on http://bomamarketing.com.
“Third-Party Sites” means third-party websites linked from within the Subscription Service, including Communications Services.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“Boma”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section of the ‘General Terms’
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
2. The Subscription Service
a. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.
b. Limits.The limits that apply to you will be specified in your Order Form, this Agreement or on our Pricing Page. You will be charged fees associated with all Billable Users. For additional limits and terms that apply to specific products, see the ‘Product Terms’ section below.
If we make modifications to the limits set forth on the Pricing Page that would negatively impact you, these modifications will not apply to you until the start of your next Renewal Subscription Term. On renewal, the current product usage limits on our Pricing Page will apply to your subscription, unless you and we otherwise agree.
c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
d. Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.
3. Customer Support
a. Support. Support is included in your Subscription Fee. We accept emailed support questions 24 Hours per Day x 7 Days per Week at email@example.com. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
b. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
c. Consulting Services
You may purchase Consulting Services by contacting us direct at firstname.lastname@example.org. Unless otherwise described in a Statement of Work or Order Form, the Consulting Services we provide will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term’ section below. Unless otherwise agreed, all Consulting Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
4. Fees and Payments
a. Subscription Fees.The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your Maximum Contacts; Email Send Limit, Visits, User or other applicable limits (see Section 2.b. above), (ii) upgrade products or base packages, or (iii) subscribe to additional features or products, including additional Contacts. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under ‘Fee Adjustments During a Billing Period’. You may not downgrade your subscription during the Subscription Term and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. We will monitor or audit remotely the number of Contacts in the Subscription Service and the number of emails that you send on the Subscription Service. If you subscribe to our Basic, Pro or Enterprise Marketing Products, this information is also available to you on your Billing Page in your Boma portal.
b. Fee Adjustments in Next Billing Period.If you exceed your Maximum Contacts in a Billing Period, then your Subscription Fee will increase at the beginning of the next Billing Period up to the tier price (as set forth on our Pricing Page) which corresponds with the maximum number of Contacts from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. We determine the number of Contacts in the Subscription Service and the number of emails you sent. At your request, we will provide you with the detail we used to reach our conclusion. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Contacts or emails sent.
c. Fee Adjustments During a Billing Period.The Subscription Fee will increase during the course of a Billing Period if you exceed your Email Send Limit in a Billing Period. In this case, the Subscription Fee will increase to the tier price which corresponds with your maximum monthly email sends from the current Billing Period. The Subscription Fee will also increase during a Billing Period up to the corresponding base package and tier price (as set forth on our Pricing Page) if you exceed the Visits limit, exceed the subdomains limit, add Billable Users, exceed other applicable limits (except as set forth in the ‘Fee Adjustments in Next Billing Period’ section), change products or subscribe to additional features for use during the Billing Period.We may choose to decrease your fees upon written notice to you.
d. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
e. Payment against invoice.If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Initial Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
f. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Boma portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Boma partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
g. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state.If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
5. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process (“Initial Subscription Term”).
b. Renewal Subscription Term.Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term, unless otherwise set forth in your Order Form. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form or, if not specified in the Order Form, on our standard pricing available on our Pricing Page. See the ‘Limits’ section above for the applicability of product usage limits on renewal. Should you decide not to renew, you may send the notice of non-renewal by email to email@example.com.
c. End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration.
6. Boma’s Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Boma Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
7. Customer’s Proprietary Rights
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you choose to use shortened URLs through the Subscription Service, you acknowledge that the data related to the number of clicks on a shortened URL may be publicly available and used by other parties. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
11. Customer Responsibilities.
To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a Project Manager, one or more Content Creators, a Sales Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that may be required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing systems.
You grant us the right to add your name and company logo to our customer list and website.
13. Customer Data
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards.We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
d. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
14. Use and Limitations of Use
a. Acceptable Use. You will comply with our Acceptable Use Policy at http://bomamarketing.com/legal/acceptable-use (“AUP”).
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by emailing us at firstname.lastname@example.org.
15. Acceptable Use of Communications Services
16. Third-Party Sites and Products
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
18. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE,BOMA CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, BOMA CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONSUNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
19. Termination, Suspension and Expiration
a. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
b. Suspension for Prohibited Acts. We may suspend any User’s access to any or allSubscription Services for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Boma email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
c. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.If aSubscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
d. Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service and Boma Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data(unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the portal, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://bomamarketing.com/legal/terms-of-service and we will let you know through the Notification app in the Boma portal used to access your Boma subscription, or as we otherwise describe in ‘Product Terms’ below. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Contracting Entity and Applicable Law. Regardless of your physical address you are contracting with Boma Technologies Limited for the Subscription and Consulting Services and this Agreement is governed by the laws of New Zealand without reference to conflicts of law principles.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Boma Technologies Limited, Level 8 BDO Tower, 120 Albert Street, Auckland, New ZealandAttention: Legal.
To you: your address as provided in our Boma Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Anti-Social Forces.If your physical address or your entity is in Japan then you represent and warrant that you, and your officers, directors, and material shareholders, are not: (i) Anti-Social Forces (defined below), and have not been for at least the last five years, and (ii) involved with Anti-Social Forces, including, without limitation, involvement by management, utilization, or provision of funding or favors. We may immediately terminate this Agreement for cause in the event of a breach of any of these representations and warranties. For the purposes of this section “Anti-Social Forces” means, collectively, an organized crime group (bouryokudan) or a member or affiliate of thereof, a corporate racketeer (soukaiya), a rogue person or group advocating a social or political movement, or any other anti-social forces. If your physical address or entity is not Japan KK, then this section does not apply to you.
n. Survival. The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Boma’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
o. Precedence. In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.
a. Applicability. If you use our CRM product offering (the “CRM”), the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms’ and the terms set forth in this ‘CRM’ section, the terms in this ‘CRM’ section will control with respect to your use of the CRM.
b. Limits. Limits apply to your use of certain features of CRM. We may change these limits any time in our sole discretion.
c. Unified Database.By using the CRM with other parts of the Subscription Service, you understand that all Contact Information will be stored in a unified database of Contacts associated with your subscription, and that all workflows you use will pull from this unified list of contacts. While there’s no charge for Contacts in the CRM, if you subscribe to our Starter, Starter Plus, Pro or Custom Solutions Products, you will be charged for Contacts as part of your fee for those products, even if they are added through the CRM and whether or not there is an email address associated with a Contact. If a Contact is imported from the CRM into our Starter, Starter Plus, Pro or Custom Solutions Products without an associated email address, it cannot be automatically de-duplicated so may result in duplications within your Boma portal.
d. Company Data. If you use our CRM, you may see fields in our company database marked with an orange dot, or highlighted in some other way. These fields are those that we let our CRM users update, to aim to keep our company database as current as possible. If you choose to submit updated information to these fields, you grant us the right to use such information in any manner that we choose (including, without limitation, publicly), without any payment or attribution to you. You represent and warrant that you have a right to share such information with us for our use and that you are not violating any confidentiality obligations by submitting the information. This information submitted by you will not be considered Customer Data or Confidential Information under this Agreement.
e. Outbound Calling via CRM. We do not guarantee the availability of our CRM’s outbound calling feature in any or all geographical areas. If you are interested in obtaining a list of countries to which we currently offer outbound calling, please contact our Support team.We may update this list at any time without notice to you. We may also disable your ability, or charge you a fee, to make calls to certain countries if we choose to, even if we generally offer outbound calling to these countries. One reason we may do this is if you are making a disproportionate or excessive number of calls to these countries.
f. Inbox Integration. Certain features of the CRM allow you to integrate your email account with the CRM. By enabling those features, you grant us access to your incoming mail, inbox history, and contacts to enable us to identify relevant emails to be stored within the CRM. The CRM tracks email correspondence that you flag for tracking by sending the email from inside the CRM, BCC’ing the email to the CRM, or otherwise opting to have an email tracked. You understand that the correspondences you track will be visible to other users on your CRM team.
g. Amendment; No Waiver. If we update or change these Customer Terms of Service, we will notify you via an in-app notification.
h. Contracting Entity and Applicable Law. You are contracting with Boma Technologies Limited with respect to your use of the CRM.
i. Survival. The following sections in this ‘CRM’ section shall survive the expiration or termination of this Agreement: ‘Company Data’, ‘Contracting Entity and Applicable Law’ and ‘Survival’.
2. Sales Product
a. Applicability.If you use our sales product offering, formerly known as Sidekick, (the “Sales Product”), the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms’ and the terms set forth in this ‘Sales Product’ section, the terms in this ‘Sales Product’ section will control with respect to your use of the Sales Product.
b. Limits.Limits apply to your use of certain features of the Sales Product. These limits are detailed at http://www.bomamarketing.com/pricing. We may change these limits any time in our sole discretion.
c. Modifications.We might make changes to the Sales Product that materially reduce the functionality of the Sales Product provided to you during the Subscription Term.
d. Support.Support for the Sales Product is offered via email only. We accept email support questions 24 Hours per Day x 7 Days per Week at email@example.com
e. Renewal Subscription Term.Upon renewal, your subscription will be adjusted to match the number of Users actually assigned at the end of your then-current Subscription Term. Should you decide not to renew, you may send notice of non-renewal by email to firstname.lastname@example.org.You may also send notice of non-renewal as specified in your Order.
f. Retrieval of Customer Data.We will not provide any access to the Sales Product after the termination or expiration of your Subscription Term to retrieve, and we will not provide you with copies of, any Customer Data from the Sales Product in our possession.
g. Contracting Entity and Applicable Law. If you do not pay us fees for your use of the Sales Product, you are contracting with Boma Technologies Limited with respect to your use of the Sales Product. If you pay us fees for your use of the Sales Product, the phrase “located in” as used in the ‘Contracting Entity and Applicable Law’ section in the ‘General Terms’ above means your billing address.
h. Amendment; No Waiver. If we update or change these Customer Terms of Service, this notification will be included as a banner on your full-pageSales Product stream.
i. Sales Product Usage Restrictions. You may not use theSales Product if you are legally prohibited from receiving or using the Sales Product under the laws of the country in which you are resident or from which you access or use the Sales Product. The Sales Product is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Sales Product where your communications would be subject to such laws. You agree not to use data from the Sales Product in legal proceedings or otherwise as evidence.
j. Sales ProductData Use. If you install the Sales Product, we will have access to certain information associated with your email account and will use some of this information to provide the Sales Product services. We may store and use your email data, such as the distribution lists (for example, the “to”, “from”, “cc”, and “bcc” fields), the subject lines, and the URLs of tracked links from your emails in order to provide the Sales Product. If you use the “Send Later” feature in the Sales Product, we will store the bodies of the emails (along with the associated attachments) that you schedule to send in order to provide this feature to you. You must connect your inbox to the Sales Product in order to use the “Send Later” feature. If you choose to connect your inbox with the Sales Product, we may use information from your inbox history to power our “Connections” feature, which allows users who share a company email domain see whether their colleagues have already corresponded with someone at their or another company. If you opt to use our template building tools, the Sales Product will scan the content of your sent emails to identify possible templates for use by Users of your Boma portal. By installing the Sales Product, you grant us the right to access and use your information and data as described in this section. If you do not agree to the terms in this section, you should not use the Sales Product. WE MAKE NO REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OF DATA FROM THE SALES PRODUCT.
k. Profile Data. The Sales Product may allow you to update the publicly-displayed information in your individual profile and the company profile matching your non-freemail email domain. You agree that those updates will be non-confidential and that we own all rights to use and incorporate them into those public profiles.
l. Content Library.The Sales Product’s ‘Content Library’ feature allows you to store presentations and other sales content to share with prospects. Files that you upload using this ‘Content Library’ feature are stored by us and shared with other users of your CRM team.
m. Survival. The following sections in this ‘Sales Product’ section shall survive the expiration or termination of this Agreement: ‘Contracting Entity and Applicable Law’, ‘Sales Product Usage Restrictions’ and ‘Survival’.
3. Alpha/Beta Services
a. Applicability. If you are given alpha or beta access to any features of the Subscription Service, the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms’ and the terms set forth in this ‘Alpha/Beta Services’ section, the terms in this ‘Alpha/Beta Services’ section will control with respect to your use of Alpha/Beta Services.
b. Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
c. Contracting Entity and Applicable Law. If you do not pay us a Subscription Fee, you are contracting with Boma Technologies Limited with respect your use of the Alpha/Beta Services. If you pay us a Subscription Fee, you are contracting with the Boma entity as set forth in the ‘Contracting Entity and Applicable Law’ section in the ‘General Terms’.
d. Survival. The following sections in this ‘Alpha/Beta Services’ section shall survive the expiration or termination of this Agreement: ‘Alpha/Beta Services’, ‘Contracting Entity and Applicable Law’ and ‘Survival’.
4. Free Services
a. Applicability.In the event of a conflict between the terms set forth in any of the sections above and the terms set forth in this ‘Free Services’ section, the terms in this ‘Free Services’ section will control with respect to your use of the Free Services.
b. Additional Definitions.“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
c. Limits. Notwithstanding anything to the contrary in this Agreement, limits may apply to our Free Services, regardless of whether these limits are specified as set forth in Section 2.b. of the ‘General Terms’ above or other sections of the ‘Product Terms’. These limits may be specified only within the Free Services. We may change the limits that apply to your use of our Free Services any time in our sole discretion without notice to you, regardless of whether or not these Free Services are used in conjunction with other products or services for which you pay us a fee. In order to use our Free Services, you must be 18 years of age or older, unless you are subject to the laws of Japan, in which case you must be 20 years of age or older.
d. Free Services. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
e. Free Trial. If you register for a trial of the Free Services, we will make the Free Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of your paid subscription. If we include additional terms and conditions on the trial registration web page, those will apply as well. Unless you purchase a subscription to the applicable Free Services before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it.
f. Disclaimers; Limitations of Liability. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE FREE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FREE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BOMA BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, BOMA IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT BOMA’S AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED DOLLARS.WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE FREE SERVICES TO YOU. THIS ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION SHALL APPLY IN LIEU OF THE ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION IN THE ‘GENERAL TERMS’ WITH RESPECT TO YOUR USE OF OUR FREE SERVICES.
g. Suspension. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
h. Contracting Entity and Applicable Law.You are contracting with Boma Technologies Limited with respect to your use of the Free Services.
i. Survival.The following sections in this ‘Free Services’ section shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Disclaimers; Limitations of Liability’, ‘Contracting Entity and Applicable Law’, and ‘Survival’.