Boostly, Inc.
Master Customer Agreement
Last amended on 12/12/2025
THESE STANDARD TERMS AND CONDITIONS (THESE “STANDARD TERMS”) ARE BETWEEN BOOSTLY, INC. (“BOOSTLY”) AND THE ENTITY IDENTIFIED AS “CUSTOMER” IN THE ENROLLMENT FORM REFERENCING THESE STANDARD TERMS (THE “ENROLLMENT FORM”). THESE STANDARD TERMS, THE ENROLLMENT FORM, AND ANY OTHER TERMS INCORPORATED BY REFERENCE INTO THESE STANDARD TERMS OR THE ENROLLMENT FORM (COLLECTIVELY, THE “AGREEMENT”) APPLY TO THE PROVISION OF ACCESS TO AND USE OF THE SERVICE (AS DEFINED BELOW) AND RELATED SERVICES. BOOSTLY AND CUSTOMER ARE EACH A “PARTY” AND, COLLECTIVELY, THE “PARTIES.” CAPITALIZED TERMS USED BUT NOT DEFINED IN THESE STANDARD TERMS WILL HAVE THE MEANINGS SET FORTH IN THE ENROLLMENT FORM. ACCEPTANCE OF THESE STANDARD TERMS IS A CONDITION TO ACCESSING AND USING THE SERVICE.
1. Overview. Subject to the terms and conditions of the Agreement, Boostly will make available to Customer Boostly’s marketing solution, currently available at https://www.boostly.com (the “Service”).
2. Service
2.1. Ordering Process. Subscriptions to the Service are purchased as set forth in the Enrollment Form. Each Enrollment Form may include terms in addition to those set forth in these Standard Terms.
2.2. Access Grant. During the Term, subject to Customer’s compliance with the terms of the Agreement, Customer may access and use the Service only in accordance with the Documentation, the Agreement, and any terms set forth in the Enrollment Form.
2.3. Users. Customer will not make available the Service to any person or entity other than employees or contractors that Customer allows to use the Service on Customer’s behalf (“Users”), using the mechanisms designated by Boostly (“Log-in Credentials”), to contact and receive messages from Customer’s customers (“End Users”). Each User must keep its Log-in Credentials confidential and not share them with anyone else. Any act or omission of a User that, if undertaken by Customer, would be a breach of this Agreement shall be deemed a breach of this Agreement by Customer. Customer will promptly notify Boostly if it becomes aware of any compromise of any Log-in Credentials. Boostly may use, disclose, transmit, transfer, store, analyze, aggregate, and otherwise process (collectively, “Process”) Log-in Credentials in connection with Boostly’s provision of the Service or for Boostly’s internal business purposes.
2.4. Documentation. During the Term, subject to Customer’s compliance with the terms of the Agreement, Boostly hereby grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 18.1), and non-sublicensable right and license to internally use the then-current version of Boostly’s usage guidelines and standard technical documentation for the Service that Boostly makes generally available to its customers (“Documentation”), solely in connection with Customer’s exercise of the rights granted in Section 2.2.
2.5. Restrictions. Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Service to a third party (other than Users); (b) use the Service or Output to develop a similar or competing product or service; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs associated with the Service, except to the extent such a restriction is not permitted under Laws (and then only with prior notice to Boostly); (d) modify or create derivative works of the Service or copy any element of the Service; (e) remove or obscure any proprietary notices in the Service; (f) publish benchmarks or performance information about the Service; (g) engage in unlawful robocalling, spam, or harassment; (h) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (i) transmit any viruses or other harmful materials to the Service; (j) take any action that risks harm to others or to the security, availability, or integrity of the Service; (k) use the Service in connection with making any lending or leasing financial decision; or (l) access or use the Service or Output in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, telemarketing, consumer protection, algorithmic discrimination or automated decision-making, international communications, or export of data (“Laws”) or the Agreement.
3. Support. During the Term, Boostly will use commercially reasonable efforts to (a) provide the Service in a manner that minimizes errors and interruptions in accessing the Service, and (b) provide, with respect to issues and questions arising from the operation of the Service, reasonable technical support to Users (collectively, “Support”).
4. Data
4.1. Use of Customer Data. Customer hereby grants Boostly a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to service providers and Customer’s designees), non-transferable (except as set forth in Section 18.1) right to access, publicly display, modify, create derivative works from, and Process any data, files (including lists of customers’ phone numbers), and other materials that Customer (including Users and End Users) inputs or makes available to Boostly, including through the Service, or that are imported from a Third-Party Platform (collectively, “Customer Data”): (a) to perform its obligations set forth in the Agreement; (b) to derive and generate Telemetry; (c) to improve the Services or Boostly’s other products and services; or (d) as necessary to comply with Laws or court order. Except as required by Laws or court order, Boostly will not provide Customer Data to any person or entity other than Customer’s designees or Boostly’s service providers. Customer Data shall not include data, including customer opt-in statuses, resulting or arising from Boostly’s patented methods. “Telemetry” means: (y) information generated from the Service, such as technical logs, data, metrics, and learnings related to the Service, which information does not identify Users or End Users, Customer, or any natural human persons as the source thereof; and (z) Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer, an End User, or a specific individual. Boostly may Process Telemetry without restriction, including to improve the Service or Boostly’s other products and services.
4.2. Output. Boostly (including its service providers) may make available to Customer certain information, content, and other materials generated specifically for Customer through the Service, including in response to Customer’s (including Users’) prompts made through the Service (collectively, “Output”). Output may be generated through the use of technologies that use or rely upon artificial intelligence, machine learning techniques, or other similar technology and features. Boostly hereby assigns to Customer the Output. Customer hereby grants Boostly a worldwide, non-exclusive, revocable, sublicensable, royalty-free, fully paid right and license to access, use, reproduce, modify, create derivative works of, publicly display, publicly preform and distribute Output to: (a) provide the Service and perform its obligations under this Agreement; (b) upon Customer’s request, assist Customer with marketing and social media activities, including posting Output on Customer’s social media pages; and (c) improve, modify, and enhance the Service and its other products. Boostly is not required to monitor and is not responsible for Customer’s use of any Output. Customer agrees to use and post all Output in compliance with Laws. If Customer provides Boostly with Customer’s third party access credentials and asks Boostly to post pre-approved Output on Customer’s behalf, Customer remains responsible for the Output and Customer represents and warrants that Customer has all necessary rights to share Customer’s third party access credentials with Boostly, including but not limited to, Customer’s usernames and passwords.
4.3. Customer Obligations. Customer is responsible for the Customer Data, including its content and accuracy, and will comply with Laws when using the Service. Customer (including Users) will not provide to, or otherwise make available via, the Service any Prohibited Data, and will not prompt, direct, or otherwise provide instructions to the Service to solicit the collection of Prohibited Data from End Users or third parties. Customer represents and warrants that it has made all disclosures, provided all notices, and obtained all rights, consents, and permissions necessary for Boostly to exercise the rights granted to it in this Agreement (including the rights granted with respect to Customer Data) without violating or infringing Laws or third-party rights. For purposes of the Agreement, “Prohibited Data” means any: (i) patient, medical, or other health information; (ii) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (iii) other information subject to regulation or protection under the Gramm-Leach-Bliley Act or Fair Credit Reporting Act (and related rules or regulations and their state law equivalents); or (iv) social security numbers, driver’s license numbers, or other government ID numbers.
5. Customer Responsibilities with Respect to Communications. For each telephone number Customer provides to Boostly or otherwise makes available via the Service, Customer will maintain complete, verifiable consent records with respect to such phone number (“Consent Record”). Each Consent Record will include, at a minimum, a timestamp, opt‑in language, End User identity, phone number, and documented prior express written consent of the applicable End User that meets 47 C.F.R. § 64.1200(f)(9) (and comparable state Laws) and the Telephone Consumer Protection Act of 1991 (TCPA), the Telemarketing and Consumer Fraud and Abuse Prevention Act, and their implementing regulations (collectively, “TCPA Laws”). If Boostly requests a sample of any Consent Record, then Customer will electronically deliver to Boostly such requested sample within 2 business days. Customer (and Users) can use the Service to make phone calls or send text SMS messages, including marketing messages, to End Users (“Outreach”), which may use an automatic telephone dialing system feature. Customer (and Users) may only initiate or direct outbound calls or text messages: (a) to telephone numbers for which Customer has a Consent Record; (b) if the End User has not opted out of receiving Outreach; (c) if the Outreach does not include any false or deceptive advertising; (d) if the Outreach does not contain any sensitive information; and (e) in compliance with TCPA Laws. Customer will provide to all End Users a clear procedure to follow if such End User desires to opt-out of receiving text messages or phone calls. Customer will maintain a do‑not‑call list and honor all “stop” or opt‑out requests within 24 hours following receipt thereof. If Customer breaches this Section, then Boostly may immediately suspend Customer’s (including Users’) access to the Service or terminate this Agreement. As between Customer and Boostly, Customer is solely responsible for the content of all messages sent to End Users.
6. Suspension of Service. Boostly may immediately suspend Customer’s access to the Service if: (a) Customer breaches Section 2.5 or Section 4.3; (b) any payments required under the Agreement are overdue by 30 days or more; (c) changes to Laws or new Laws require that Boostly suspend Customer’s access to the Service or otherwise may impose additional liability on the part of Boostly; or (d) Customer’s breach of the Agreement risks harm to any of Boostly’s other customers or the security, availability, or integrity of the Service. Where practicable, Boostly will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Boostly will restore Customer’s access to the Service.
7. Third-Party Platforms. The Service may support integration with third-party platforms, add-ons, services, or products not provided by Boostly (“Third-Party Platforms”). Use of any Third-Party Platforms integrated with or made available through the Service is subject to Customer’s agreement with the relevant provider and not the Agreement. Boostly does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service. By enabling a Third-Party Platform to interact with the Service, Customer authorizes Boostly to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
8. Privacy and Data Protection. To the extent applicable, the Parties will comply with their respective obligations as set forth in the Data Processing Agreement, available at https://boostly.com/data-processing-addendum (“DPA”).
9. Fees and Taxes
9.1. Fees. Customer will pay the fees set forth in each Enrollment Form (“Fees”). All Fees will be paid in U.S. dollars unless otherwise provided in the Enrollment Form. Fees are invoiced as described in the Enrollment Form. Unless the Enrollment Form provides otherwise, all Fees are due 30 days after the invoice date. Unless otherwise set forth in the Enrollment Form, Customer authorizes Boostly or its third-party payment processors to automatically periodically charge, on a going-forward basis and until termination of the Service, all accrued sums on or before the payment due date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Laws, whichever is less. All Fees are non-refundable except as may be set out in Section 10.2 and Section 14.4.
9.2. Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to the Enrollment Form(s), whether domestic or foreign, other than Boostly’s income tax (“Taxes”). Fees are exclusive of all Taxes.
10. Warranties and Disclaimers
10.1. Service Warranty. Boostly warrants to Customer that the Service will perform materially as described in its Documentation and Boostly will not materially decrease the overall functionality of the Service (“Service Warranty”) during the Term. The Service Warranty does not apply to: (a) issues arising from, or related to Customer’s, Users’ misuse of or unauthorized modifications to the Service; (b) issues in, arising from, or related to Third-Party Platforms or other third-party systems; (c) use of the Service other than in accordance with the Documentation; or (d) Trials and Betas or other free or evaluation use of the Service.
10.2. Service Warranty Remedy. If Boostly breaches the Service Warranty during the Term and Customer makes a reasonably detailed warranty claim in the manner required by Boostly within 30 days of discovering a breach of the Service Warranty, then Boostly will use reasonable efforts to correct the non-conformity. If Boostly cannot do so within 30 days of receipt of Customer’s warranty claim, either Party may terminate the Agreement without penalty and Boostly will then refund to Customer any pre-paid, unused Fees for the incomplete portion of the Term. This Section sets forth Customer’s exclusive remedy and Boostly’s entire liability for breach of the Service Warranty.
10.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1, THE SERVICE, SUPPORT, OUTPUT, AND ALL OTHER BOOSTLY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BOOSTLY, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. BOOSTLY DOES NOT WARRANT THAT CUSTOMER’S, USERS’, OR END USERS’ USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT BOOSTLY WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. BOOSTLY IS NOT LIABLE FOR PROHIBITED DATA, DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF BOOSTLY’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. Without limiting the foregoing, Customer acknowledges and agrees that, and Customer will ensure that Users acknowledge and agree that: (a) the Service and Output are not professional advice, including legal, tax, investment, or other advice, and Customer and Users will not rely on the Service or Output as a substitute for professional advice; (b) the Service may produce inaccurate or erroneous Output; (c) Customer and Users are responsible for independently evaluating Output and any other information received from the Service; (d) Customer and Users are responsible for their own research and decision-making, and for any acts or omissions undertaken based on information received from the Service, including Output; and (e) due to the nature of the Service and artificial intelligence technologies generally, Output may not be unique and other users of the Service may receive output from the Service that is similar or identical to the Output (and, notwithstanding anything to the contrary, such similar or identical output will not be understood to be Output hereunder).
11. Term and Termination
11.1. Term. Unless earlier terminated in accordance with the terms of the Agreement, the “Initial Term” of the Agreement will be as set forth on the Enrollment Form. Thereafter, unless the Agreement terminates earlier in accordance with the terms of the Agreement, the Agreement will automatically renew for additional successive “Renewal Terms” having the length set forth on the Enrollment Form (the Initial Term and any Renewal Terms, collectively, the “Term”), unless either Party gives the other Party notice of non-renewal at least 30 days before the end of the Initial Term or applicable Renewal Term. If either Party does provide notice of non-renewal the Agreement will end at the conclusion of the then-current term.
11.2. Termination. Either Party may terminate the Agreement (including the Enrollment Form) upon written notice to the other Party if the non-terminating Party: (a) fails to cure a material breach of the Agreement (including a failure to pay Fees) within 30 days after receiving notice thereof from the terminating Party; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 60 days.
11.3. Effect of Termination. Upon expiration or termination of the Agreement, Customer’s rights to access, and Boostly’s obligations to provide, the Service and Support will cease. Following the date of expiration or earlier termination of the Agreement, Boostly will be under no obligation to store or retain Customer Data and may delete Customer Data at any time in its sole discretion. Confidential Information may be retained in Recipient’s standard backups notwithstanding any obligation to delete such Confidential Information but will remain subject to the Agreement’s confidentiality restrictions.
11.4. Survival. These Sections survive expiration or termination of the Agreement: 2.5, 4, 5, 10.3, 11.3, 11.4, 12, 13, 14, 15, 17, and 18. Section 8 will survive only for as long as Boostly Processes Customer Personal Information (as defined in the DPA) on behalf of Customer pursuant to these Standard Terms. Except where an exclusive remedy is provided in the Agreement, exercising a remedy under the Agreement, including termination, does not limit other remedies a Party may have.
12. Ownership; Feedback. Neither Party grants the other Party any rights or licenses not expressly set out in the Agreement. Except as expressly provided in the Agreement, as between the Parties, Customer retains all intellectual property rights and other rights in and to the Customer Data. Except for the rights and licenses granted in the Agreement, Boostly and its licensors retain all intellectual property rights in and to the Service, including Boostly patents and all consumer opt-in statuses generated through Boostly’s patented methods. To the extent Customer provides Boostly with feedback (including suggestions and comments for enhancements or new functionality) regarding the Service, Output (including underlying datasets), or Boostly’s products, services, or other technology (“Feedback”), Boostly has the full and unrestricted right (but no obligation) to use or incorporate Feedback in any manner, including to improve and develop any of its products, services, technology, or other materials.
13. Limitations of Liability
13.1. Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS (AS DEFINED BELOW) NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
13.2. Liability Cap. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’ AND LICENSORS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO BOOSTLY PURSUANT TO THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THE AGREEMENT.
13.3. Excluded Claims. “Excluded Claims” means: (a) claims for unpaid Fees owed to Boostly under the Agreement; (b) Customer’s breach of Sections 2.5, 4.3, or 5; and (c) a Party’s payment obligations under the indemnity set forth in Section 14.
13.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy in the Agreement fails of its essential purpose.
14. Indemnification
14.1. Indemnification by Boostly. Boostly will defend Customer from and against any third-party claim to the extent alleging that the Service (but excluding Output), when used by Customer in accordance with the Agreement, infringes or misappropriates a third-party’s patent, copyright, trademark, or trade secret (other than as a result of a breach by Customer of this Agreement), and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Boostly resulting from the claim.
14.2. Indemnification by Customer. Customer will indemnify and hold Boostly harmless, and upon request defend Boostly, from and against any expenses, liabilities, damages, and costs of any kind (including attorneys’ fees) resulting from a third-party claim related to (a) the Customer Data, (b) Customer’s breach or alleged breach of Section 2.5, 4.3, or 5, (c) Customer’s (including Users’) use of Output; (d) Customer’s breach of Laws, including but not limited to violations of TCPA Laws and related state telemarketing laws; and (e) Customer’s breach of its representations and warranties in this Agreement.
14.3. Procedures. The indemnifying Party’s obligations in this Section 14 are subject to it receiving: (a) reasonably prompt written notice of the indemnified claim and (b) the reasonable cooperation of the indemnified Party, at the indemnifying Party’s expense. The indemnifying Party may not settle any indemnified claim without the indemnified Party’s prior consent if settlement would require the indemnified Party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Boostly is the indemnifying Party). When the indemnifying Party undertakes the defense of an indemnified claim, the indemnified Party may participate in a claim with its own counsel at its own expense.
14.4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Boostly determines necessary to avoid material liability, Boostly may at its option: (a) procure rights for Customer’s continued use of the Service; (b) replace or modify the allegedly infringing portion of the Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the Agreement and refund to Customer any pre-paid, unused Fees for the incomplete portion of the Term.
14.5. Exceptions. Boostly’s obligations in this Section 14 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of the Service or use of the Service in combination with items not provided by Boostly (including Third-Party Platforms); (b) to unauthorized use of the Service; (c) if Customer settles or makes any admissions about a claim without Boostly’s prior consent; or (d) to Trials and Betas or other free or evaluation use.
14.6. Exclusive Remedy. THIS SECTION 14 SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND BOOSTLY’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
15. Confidentiality
15.1. Definition. “Confidential Information” means information disclosed to the receiving Party (“Recipient”) under the Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Boostly’s Confidential Information includes the terms and conditions of the Agreement and the Service (including any technical or performance information about the Service). Customer’s Confidential Information does not include Customer Data, which is subject to separate rights and obligations, including those set forth in Section 4 and in the DPA.
15.2. Obligations. As Recipient, each Party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in the Agreement, including Section 4.1; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in the Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Boostly, the subcontractors referenced in Section 18.9) (“Representatives”), provided Recipient remains responsible for its respective Representatives’ compliance with this Section 15 and such Representatives are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 15.
15.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the Recipient or its Representatives; (b) it rightfully knew or possessed prior to receipt under the Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
15.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Discloser may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15, without necessity of posting a bond or proving actual damages.
15.5. Required Disclosures. Nothing in the Agreement prohibits Recipient from making disclosures, including of Customer Data and other Confidential Information, if required by Laws, subpoena, or court order, provided (if permitted by Laws) it notifies Discloser in advance and cooperates in any effort to obtain confidential treatment.
16. Trials and Betas. If Customer receives access to the Service or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Boostly (or if not designated, 30 days). Trials and Betas are optional and either Party may at any time for any reason terminate Trials and Betas. Trials and Betas may be inoperable, incomplete, or include features that Boostly may never release, and their features and performance information are Boostly’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, BOOSTLY PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS OR THE SERVICE, AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED $50 USD.
17. Publicity. Boostly may publicly announce that the Parties have entered into the Agreement, unless prohibited by Laws. Boostly may also use the name, brand, or logo of Customer (or Customer’s parent company) for the purpose of identifying Customer as a licensee or customer on Boostly’s website or in other promotional materials. Boostly will cease further use at Customer’s written request.
18. General Terms
18.1. Assignment. Neither Party may assign the Agreement without the prior consent of the other Party, except that either Party may assign the Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which the Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
18.2. Governing Law, Jurisdiction and Venue. The Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. Subject to Section 18.3, the jurisdiction and venue for actions related to the Agreement will be the state and United States federal courts having jurisdiction over New Castle County, Delaware, and both Parties submit to the personal jurisdiction of those courts.
18.3. Dispute Resolution and Arbitration. In the event a dispute arises between the Parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in New Castle County, Delaware, in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”). The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief. If this Section 18.3 (Dispute Resolution and Arbitration) is found to be unenforceable, then the entirety of this Section 18.3 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 (Governing Law, Jurisdiction and Venue) will govern any action arising out of or related to this Agreement.
18.4. Notices. Except as set out in the Agreement, any notice or consent under the Agreement must be in writing to the addresses or email addresses (as applicable) on the Enrollment Form and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery service or (d) if by email, on the date sent, provided no bounce-back or error message is received. Either Party may update its address with notice to the other Party pursuant to this Section. Boostly may also send operational notices to Customer by email, text messages, or through the Service.
18.5. Entire Agreement. The Agreement is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. An Enrollment Form may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
18.6. Amendments. Boostly may modify or amend this Agreement and such modifications will be effective when Boostly provides notice of the same to Customer, except that if any such modification is material and adverse to Customer, then such modification will take effect upon the earlier of (a) the date that Customer accepts the modified version of this Agreement and (b) the first day of the next Renewal Term. Boostly may fulfill the notice requirement in the immediately previous sentence by email (in which case such notice will be effective in accordance with Section 18.4) or by presenting the updated Agreement to Customer through the Services (in which case such notice will be effective when Customer accesses the Services). Except as otherwise expressly set forth in this Agreement, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Boostly. The terms in any Customer purchase order or business form will not amend or modify the Agreement and are expressly rejected by Boostly; any of these Customer documents are for administrative purposes only and have no legal effect with respect to the Agreement.
18.7. Waivers and Severability. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of the Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of the Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.
18.8. Force Majeure. Neither Party is liable for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
18.9. Subcontractors. Boostly may use subcontractors and permit them to exercise Boostly’s rights, but Boostly remains responsible for their compliance with the Agreement and for its overall performance under the Agreement.
18.10. Insurance. Customer will obtain, and maintain throughout the Term, commercial general liability (or self‑insurance) with at least $1,000,000 USD per occurrence that covers claims with respect to advertising, telemarketing, and TCPA Laws, and will promptly provide a certificate (or other evidence) to Boostly upon request.
18.11. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.
18.12. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using the Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
18.13. Government End Users. Elements of the Service may include commercial computer software. If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
18.14. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of any Enrollment Form and these Standard Terms, the terms of the Enrollment Form will control to the extent of the conflict.