Terms of Service

 

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 use our best endeavors to let you know.

The ‘General Terms’ below set out the provisions that apply to our product

 

GENERAL TERMS

 

1. Definitions

“Agreement” means these Customer Terms of Service and all materials referred or linked to in here. If you are keeping track, the Customer Terms of Service used to be called the Terms of Use.

“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) month Initial Subscription Term, with a 1 (1) month upfront payment, the Billing Period will be one (1) month.

BOMA Partner” means an agency or reseller with whom Boma partner, to sell Boma products, the Subscription Service and/or Consulting Services to third parties.

“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) identified by mandatory email address 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, including Personal Data. 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.

“Contact Limits” means the number of contacts allowed in your Subscription Service. The Subscription Service pricing is subject to increase in accordance with the number of contacts as per our pricing page. This limit includes any unsubscribed contacts but does not include deleted contacts.

“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.

“Personal Data” means any data by which a living individual can be identified, whether directly or indirectly.

“Pricing Page” means https://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.

“Intellectual Property” means all copyright, design, patent or trade mark rights, whether currently registered or not, in relation to trade names proprietary processes and formulae, technology, interfaces, software source code and object code, algorithms, development tools and designs or associated with BOMA services including software copyright, trade mark and logo copyright.

“Site Visit” or “Visit” means interaction with your website by a single visitor in a single session.

“Subscription” means your subscription to the Subscription Service for the Subscription Term.

“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 https://bomamarketing.com, https://app.bomamarketing.com/dashboard 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 https://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

2.1 Access. During the Subscription Term we will provide you access to use the Subscription Service as described in this Agreement.

2. 2 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.

2.3 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.

2.4 Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.

3. Customer Support

3.1 Support. Support is included in your Subscription Fee. We accept emailed support questions 24 Hours per Day x 7 Days per Week at support@bomamarketing.com. Webform responses are provided during phone support hours only. We attempt to respond to web form support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.

3.2 Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

3.3 Consulting Services. You may purchase Consulting Services by contacting us direct at info@bomamarketing.com. 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.

To enable us to provide the Consulting Services, you must provide our Consultants with full and safe access to your premises as required. Where applicable, you will provide, at your cost, suitable materials, equipment, well maintained Internet connections and facilities (including use of telephone and support services) as we and/or our Consultants reasonably require to carry out the Consulting Services.

You will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services performed on-site. 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

4.1 Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your Contacts Limit, (ii) upgrade products or base packages, or (iii) subscribe to additional features or products, including additional Contacts. You may downgrade your subscription during the Subscription Term by reducing your Contacts and falling below your Contact Limits. 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. This information is also available to you on your Billing Page in your BOMA Any Subscription Fees will be due and payable monthly from the Initial Subscription Term commencement date.

4.2 Fee Adjustments in Next Billing Period. If you exceed your Contact Limits in a Billing Period, then your Subscription Fee for the next Billing Period will be increased to the tier price (as set forth on our Pricing Page) that corresponds with the maximum number of Contacts from the prior Billing Period. Your Subscription Fee will reflect the increased tier pricing as at the date that you exceeded your Contact Limits and will be payable from the next Billing Period in the Subscription Term. Each Billing Period during the Subscription Term we assess factors like Maximum Contacts, your entitlements under the Subscription Service and the number of emails you sent to assess the suitability of your Subscription Fee. At your request, we will provide you the information we used to reach our conclusion. Once increased, your Subscription Fee will decrease if there is a subsequent reduction in the number of Contacts in your account.

4.3 Fee Adjustments During a Billing Period. The Subscription Fee will increase during the course of a Billing Period if you exceed your Contact Limits 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 change during a Billing Period to the corresponding package and tier price (as set forth on our Pricing Page) if the number of your Contacts changes or you subscribe to additional features for use during the Billing Period. You may be liable to pay an additional fee in this Billing Period to reflect this fee adjustment. In the event that you would be subject to a fee adjustment yet opt to cancel your Subscription before the next Billing Period, the difference between your current Subscription Fee and the increase in Subscription Fee will be due and payable before you cancel your Subscription.

4.4 Payment by credit card. If you are paying by credit card, you authorise us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorise us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

4.5 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.

4.6 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 All payment obligations are non-cancellable 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.

4.7 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

5.1 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”).

5.2 Renewal Subscription Term. This Agreement will automatically renew on a monthly basis (“Renewal Subscription Term”) or as agree in writing between the parties. 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. Your Subscription Fee is subject to change in accordance with Clause 4.

5.3 Cancellation of Subscription. The Subscription Term will automatically renew on a monthly basis until it is cancelled. You can cancel your Subscription at any time by visiting the billing page located at https://app.bomamarketing.com/settings/billing. In the event that you cancel your Subscription, you will be liable to pay any fees payable under the current Subscription Term. This is the case even if the Subscription Term had recently commenced. If your subscription is not paid on a monthly basis, you may send the notice of non-renewal by email to info@bomamarketing.com.

6. BOMA’s Proprietary Rights

6.1 We, or our licensors (if any) are the owners of all Intellectual Property rights associated with BOMA Content and the BOMA Subscription Service and retain all ownership of the Intellectual Property.

6.2 This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to or assignment of any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the BOMAContent, the Subscription Service, or the Consulting Services in whole or in part by any means, or permit or assist any third party in taking those actions, except as expressly authorised in advance in writing by us.

7. Customer’s Proprietary Rights

7.1 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.

8. Account

8.1 To access certain content in the Subscription Service, you must complete the registration process by creating an account (“Account”) and nominating a password (‘Password’). If you do not provide accurate and complete details we may not be able to activate your membership and provide you with complete access to the Site. You agree to keep your Account and membership details current at all times by updating these details via your Account settings page located at https://app.bomamarketing.com/settings/user-settings.

8.2 You agree that you have sole responsibility for any activity that occurs on or using your Account, as well as the accounts of your Users. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your Users’ Passwords or Accounts.

8.3 We take no responsibility for determining the ownership of individual User accounts within your organisation, as this information is completely organisation dependent. You agree not to request access to, or information about, an Account that does not belong to you and undertake to resolve any account-related disputes internally. In the event we need to determine who an Account belongs to, we will look to the content of the emails in that Account.

8.4 You will notify us right away of any unauthorised use of your Users’ Accounts and Passwords or your account by emailing us at support@bomamarketing.com.

9. Eligibility

9.1 You must be eighteen (18) years of age or over to register as a member of the Site or to access the Site. If you are under the age of 18 years (‘Minor’), you must immediately cease accessing and using the Site.

9.2 Your continued use of the Site is an acknowledgement by you that:

(a) you are over the age of eighteen (18) years;

(b) you accept these Terms and Conditions and agree that you have entered into a binding legal contract with us in relation to these Terms and Conditions.

10. Confidentiality

10.1 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. In the event that disclosure of the Confidential Information is made in accordance with (iv), the Receiver must take care to convey that the information is Confidential Information. 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

11.1 To realise 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.

11.2 You confirm and warrant that you either own or have the unrestricted right to use all Customer Data and to enter into this contract with us to provide the Subscription Service and Consulting Services to you in relation to the Customer Data.

11.3 You also confirm and warrant that you have a valid legal basis in accordance with European Directive 2002/58/EC (e-Privacy Directive) and Articles 6 and 9 of Regulation (EU) 2016/679 (GDPR) to (a) process all Personal Data forming part of the Customer Data for marketing purposes; and (b) share all such Personal Data with us as a data processor for the purposes of providing the Subscription Service and Consulting Services to you, subject to your instructions.

11.4 Specifically, if you are relying on the consent of the data subjects for the processing described in Clause 11.3, you warrant that you can show that all such consents were freely given, specific, informed and unambiguous, in accordance with the GDPR. You agree to inform us immediately if any individual withdraws their consent.

12. Publicity

12.1 You grant us the right to add your name and company logo to our customer list and website.

13. Customer Data

13.1 Limits on BOMA. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at https://bomamarketing.com/legal/privacy-policy. We may monitor your partner’s activity within your BOMA portal for the purposes of managing and improving the BOMA Partner Program. We will not use Contact Information for our own marketing purposes.

13.2 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.

13.3 Safeguards. In order to protect Customer Data from misuse, loss and unauthorised access, modification or disclosure, we will maintain commercially appropriate administrative, physical, and technical safeguards. We will take reasonable steps to either destroy or permanently de-identify Customer Data if it is no longer needed for any purpose. You consent to the processing of Customer Data in the United States.

13.4 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

14.1 Acceptable Use. You will comply with our Acceptable Use Policy at https://bomamarketing.com/legal/acceptable-use(“AUP”).

14.2 Prohibited and Unauthorised 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 unauthorised 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.

15. Acceptable Use of Communications Services

15.1 You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.

16. Third-Party Sites and Products

16.1 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.

17. Indemnification

17.1 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) unauthorised 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 unauthorised 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 defence 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 defence 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

18.1 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.

18.2 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.

18.3 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER 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.

18.4 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.

18.5 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

19.1 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.

19.2 Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription 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.

19.3 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 a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

19.4 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.

19.5 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service and BOMAContent, 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.

19.6 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.

20. General

20.1 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 https://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.

20.2 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.

20.2 Contracting Entity and Applicable Law. Regardless of your physical address you are contracting with Boma Technologies Limited for the Subscription and Consulting Services. This Agreement is governed by the laws of New Zealand without reference to conflicts of law principles and the parties submit to the jurisdiction of the courts of New Zealand.

20.3 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.

20.4 Actions Permitted. Except for actions for non-payment 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.

20.5 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

20.6 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.

20.7 Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.

(a) To Boma Technologies Limited, Level 4, Building A, BDO Centre, 4 Graham Street, Auckland, 1010, New Zealand. Attention: Legal.

(b) To you: your address as provided in our BOMASubscription 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 centre 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.

20.8 Entire Agreement. This Agreement (including each Order Form and Statement of Work), along with our Privacy Policy and AUP, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

20.9 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.

20.10 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.

20.11 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.

20.12 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.

20.13 Survival. The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions', ‘Fees and Payments’, ‘BOMA'sProprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality', ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.

20.14 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.

 

PRODUCT TERMS

 

1. Alpha/Beta Services

1.1 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.

1.2 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.

1.3 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’.

1.4 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’.

2. Free Services

2.1 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.

2.2 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.

2.3 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.

2.4 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.

2.5 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.

2.6 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, BOMAIS 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.

2.7 Suspension. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.

2.8 Contracting Entity and Applicable Law. You are contracting with Boma Technologies Limited with respect to your use of the Free Services.

2.9 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’.

Last Modified: 22nd May, 2018