User Agreement

 

This Agreement (the “Agreement”) is a legal agreement between the company set forth on the registration page (“You” or “User”) and Boostly, Inc. (“Company” or “Boostly”). This Agreement specifies the terms under which You may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting your assent to this Agreement, You agree to be bound by the terms of this Agreement. If You do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of User represents that he or she is an authorized representative of User capable of binding it to this Agreement.

 

The definitions for some of the defined terms used in this Agreement are set forth in Section 12. The definitions for other defined terms are set forth elsewhere in this Agreement.

 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, User and Company (collectively, the “Parties” and each, a “Party”) hereby agree as follows:

1. SUBSCRIPTION TO THE PLATFORM; LICENSES; RESTRICTIONS ON USE; ADDITIONAL PRODUCTS AND SERVICES.

1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, Company hereby grants to User during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Platform.  User shall be responsible to Company for any and all acts or omissions of the Users. Company reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability. References to the “Platform” in this Agreement shall refer to the Platform, and to the extent User has opted-in, any additional services of Company.

1.2 License Grants to User Content and User Marks.

  • a. Subject to the terms of this Agreement, User hereby grants to Company during the Term: (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the User Content, in whole or in part, through the Platform and in connection with any services Company performs for User pursuant to the Additional Terms (as defined below), but solely to the extent necessary for Company to perform such services. Company’s license to modify the User Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to User pursuant to the Additional Terms; and (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the User Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the User; (2) in connection with Company’s performance of any services pursuant to the Additional Terms; and (3) in connection with the marketing, advertising, and promotion of Company and the Platform. All goodwill generated by Company’s use of the User Marks as set forth herein shall inure to the benefit of User.

  • b. Company shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) (i) to any subcontractors performing services on Company’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or Company badges or widgets embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to Company with respect to the use of the User Content and the User Marks.

 

1.3 Restrictions on Use. User will not (and will not permit any third party to) make any use or disclosure of the Platform, or the Data that is not expressly permitted under this Agreement. Without limiting the foregoing, User will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform (iii) resell, distribute, or sublicense the Platform; make the Platform, or otherwise allow any third party to use or access the Platform, or the Tablet; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform; (v) use the Platform, the Data, or the Tablet, in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (vi) introduce into the Platform, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.

 

1.4 Additional Products and Services. User may order Additional Products and Services at any time during the Term on notice to Company, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms“), as the same may be amended by Company from time to time.

2. REGISTRATION, MAINTENANCE OF ACCOUNT, AND BOOSTLY WIDGET.

 

2.1 Registration. During the registration process, Company requires You to create an account, which may include a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating You when Your Users log into the Platform in the future (“Unique Identifiers”). When creating the account, You must provide true, accurate, current, and complete information. User is solely responsible for the confidentiality and use of Your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform Company of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Company will not be liable for any loss or damage caused by any unauthorized use of Your account.

 

2.2 Maintenance of Account. As Company’s business evolves, it may require additional information, authorizations, and permissions from You after You register in order to provide You access to and usage of the Platform and perform its other obligations under this Agreement. When requested by Company, You shall promptly provide all such information, authorizations, and permissions in accordance with Company’s request. When doing so, You shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to You or immediate termination of Your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so Company can comply with its Know Your Customer obligations), Company shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.

 

2.3 Company Widget. In order to integrate Your website with the Platform, You hereby grant Company the right, during the Term, to embed the Company widget in Your website.  To the extent permission to do so is required from a third party acting on Your behalf (e.g., Your hosting provider, webmaster, etc.), you will assist us in promptly obtaining such permission and any necessary access credentials.

3. PRIVACY; CANADA’S ANTI-SPAM LEGISLATION.

 

3.1 Privacy. During the Term, Company shall publish to Customers via Company’s website a link to Company’s privacy policy that describes the ways in which Company collects, uses, discloses, and protects Customer PII and non-PII.

 

3.2 Canada’s Anti-Spam Legislation. If You are located in Canada, You are responsible for ensuring that all electronic communications between You and Your Customers comply with Canada’s Anti-Spam Legislation (“CASL”), including, but not limited to, any electronic messages sent to Customer email addresses accessed through Your dashboard. Company does not represent that it has obtained the consent of any Customer to receive marketing and promotional messages, and You are solely responsible for ensuring compliance with CASL for any electronic messages You send to Customers. If You are not located in Canada, please note that this Section 3.2 shall not apply.

4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.

 

4.1 Fees; Refund Policy; Taxes. As consideration for the rights to use the Platform granted in Section 1, User shall pay Company its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by User and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if User orders any Additional Products and Services through the functionality of the Platform, it shall pay Company’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Fees”). Company may modify the Fees at any time on written notice to User (including via User’s individual account in its admin dashboard), and any such modification shall go into effect thirty (30) days after such notice.  The Subscription Fee shall be locked for the current Term of the Agreement, unless written acknowledgement of the contrary is provided by both parties. Click here to view Company’s refund policy (the “Refund Policy”), which is hereby incorporated into and made part of this Agreement. In connection with: (i) any orders for Additional Products and Services, User shall also pay Company any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes (collectively, “Taxes”).

 

4.2 Payments to Company. Company shall authorize User’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and User hereby consents to the same. If Company is in the United States, all payments will be charged and made in U.S. dollars. If Your restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency. Fees shall begin to accrue and be charged on the Effective Date. Within thirty (30) days after termination of this Agreement, Company shall charge User’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.

 

4.3 Payments to User.

Company may use Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders.

  • a. You must enter into the Connected Account Agreement (“CAA”) with Stripe and its sponsoring bank. The CAA is available at https://stripe.com/connect/account-terms. By accepting this Agreement, You agree: (i) that You have downloaded or printed the CAA; and (ii) that You have reviewed and agree to the CAA. Please note that Company is not a party to the CAA and that You, Stripe, and Stripe’s sponsoring bank are the three parties to the CAA and that Company has no obligations or liability to You under the CAA. If You have questions regarding the CAA, please contact Stripe as described in the CAA. If payment for an Order is processed through Stripe, the next business day after an Order settles, which will ordinarily be one (1) to two (2) business days from the actual Order date (depending upon Your bank’s settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: 2.95% + $0.30 per Order. To the extent returns cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize Company and/or Stripe to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a daily basis. In the event of any consumer chargebacks, You shall provide Company any necessary documentation to resolve the chargeback claim. If the claim goes unresolved and/or funds are required to be remitted back to the consumer, You hereby authorize Company to automatically deduct the amount being returned to the consumer from the upcoming deposits otherwise due to You hereunder. To the extent refunds cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize Company and/or Stripe to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such chargebacks. To the extent the terms set forth in Section 4.3(a)(iii) above conflict with the terms contained in Your CAA, the terms of Section 4.3(a)(iii) shall prevail.

  • b. RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT BOOSTLY IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPE FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE, PURSUANT TO THE CAA. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES BOOSTLY FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.

 

4.4 Taxes On Orders. In connection with all Orders, You shall: (i) ensure that the tax rates set forth in Your Company dashboard are correct; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and the processing of such Orders for Customers (excluding any taxes imposed or based on Company’s income).

 

4.5 Subscription Plans. At any time during the Term, User, if it previously selected a monthly billing plan, may upgrade to an annual or two-year billing plan. If User previously selected an annual or two-year billing plan, User may switch billing plans at the end of the current Term Period. User may add new locations at any time during the Term on notice to Company, including through the Platform, via e-mail, or by phone.

5. TERM, TERMINATION, AND SUSPENSION.

 

5.1 Term. The term of this Agreement (the “Term”) shall begin on the date that User is billed and continue thereafter for an initial period of 12 months. The Term shall then automatically renew for successive 12-month periods (the “Term Period”)unless User provides written notice to the contrary at least 30 days prior to the end of the expiring period, in which case, the Term will terminate automatically without penalty at the end of such expiring period. If User opts to pay in 24 month increments, the Term periods shall be changed to 24 months.

 

5.2 Suspension. Company may suspend access to the Platform or remove some or all User Content in Company’s sole discretion, if Company reasonably believes that User, User’s patrons, or any third party is engaged in: (i) any activity that may harm Company, its systems, or any third-party systems; or (ii) fraudulent or illegal activity or any other activity that could result in legal liability to Company or any third party. Any such suspension may continue until the activity causing the suspension has been cured and Company has received satisfactory assurances that it will not recur.

 

5.3 Effect of Termination. Upon termination of this Agreement:

  • a. User shall be paid any amounts payable under Section 4.3(a), Section 4.3(b), and Section 4.3(d);

  • b. Company shall charge User’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.2 and any other amounts due under this Agreement; and

  • c. All rights and licenses granted hereunder will immediately cease, and User will immediately cease all access to and use of the Platform and return any property belonging to Company that User has in their possession.

  • d. Company shall remove the Company widget from Your website, and You shall assist us in doing so.

 

5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.4 (“Additional Products and Services”); Section 5.3 (“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.4 (“Survival”).

6. OWNERSHIP.

 

6.1 Intellectual Property. Company owns and shall own all right, title, and interest in and to the Platform, including all source code, object code, operating instructions, and interfaces developed for or relating to the Platform, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Company Intellectual Property”). User will have no rights with respect to the Company Intellectual Property other than those expressly granted hereunder. User owns and shall own all right, title, and interest in and to the User Content and the User Marks, including all copyrights and other intellectual property rights relating thereto (the “User Intellectual Property”). Company will have no rights with respect to the User Intellectual Property other than those expressly granted hereunder. In addition, User shall own all Data; provided, however, that User hereby irrevocably grants Company a perpetual, royalty free, non-exclusive, sublicensable, assignable license to reproduce and use such Data to perform its obligations and services hereunder and for any purpose set forth in Company’s privacy policy.

6.2 Usage of Data. Although User owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and Company’s privacy policies.

7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

 

7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to User, any franchise agreement.

7.2 Additional Representations, Warranties, and Covenants of User. In addition to the representations and warranties set forth in Section 7.1, User represents, warrants, and covenants that: (i) it shall timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform; (ii) for any Orders or that are scheduled to be delivered to a Customer by a third-party delivery service, User shall package the Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order is available for pickup upon the third-party delivery service’s arrival; (iii) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order that includes alcohol, User shall abide by such laws, including, without limitation, checking Customer’s ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; (iv) the User Content and the User Marks and Company’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (v) User has acquired all third-party clearances, permissions, and licenses which are necessary in connection with Company’s use of the User Content and the User Marks and/or Company’s exercise of any license granted hereunder, and Company shall not be obligated to pay any fees in connection therewith.

7.3 Disclaimer.

  • a. BOOSTLY CANNOT GUARANTEE THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY BOOSTLY HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BOOSTLY MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

  • b. BOOSTLY HAS MADE EVERY EFFORT TO DISPLAY PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER OR TABLET, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH BOOSTLY WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.

8. LIMITATION OF LIABILITY.

 

EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO BOOSTLY HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS; OR (C) YOUR BREACH OF SECTION 1.3; AND (II) BOOSTLY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO BOOSTLY UNDER THE APPLICABLE ORDER.

9. INDEMNIFICATION.

 

Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, You shall indemnify, defend, and hold harmless the Company Indemnified Parties from and against any and all Losses incurred by such Company Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Your breach or alleged breach of the Incorporated Terms and/or Section 4.4; (ii) an Adverse Event; or (iii) the processing of Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.

10. PUBLICITY.

 

During the Term, Company shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that You are a client of Company and a user of the Platform. In addition, upon the reasonable request of Company, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, You, if requested by Company, shall make one (1) or more representatives available for a strategic press interview.

11. MISCELLANEOUS PROVISIONS.

 

The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement is entered into in the State of Utah and shall be governed by and construed in accordance with the domestic laws of the State of Utah, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Utah pursuant to the rules and procedures of AAA (American Arbitration Association) and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, Company may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement and the Additional Terms is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that Company may modify this Agreement and/or the Additional Terms at any time by posting such modification on Your individual account in Your Admin dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is User’s responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.

12. DEFINITIONS.

 

Defined terms have the meanings set forth in this Section 12 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.

12.1 “Additional Products and Services” means products and services, other than access to the Platform.

 

12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order.

 

12.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

 

12.4 “Customer” means a party that submits an Order.

 

12.5 “Platform” means Company’s services and software, which is accessed via Company’s website, Your website, Company’s Facebook social plugin; and shall also include the Tablet.

 

12.6 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.

 

12.7 “Effective Date” means the date You accepted this Agreement.

 

12.8 “Menu” means Your menu submitted to Company, as updated by You from time to time.

 

12.9 “Order” means a meal order for Your food and/or beverages submitted by Customers through Company via the Platform.

 

12.10 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.

 

12.11 “User Content” means any content submitted by You to Company, including, without limitation, the Menu.

 

12.12 “User Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the User Content.

 

12.13 “Term” has the meaning specified in Section 5.1.

 

12.14 “User” means an employee or agent of User who accesses and uses the Platform on the terms and conditions of this Agreement.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
 

ADDITIONAL TERMS

These Additional Terms apply to any order for Additional Products and Services requested by You and are being entered into pursuant to the Agreement between You and Boostly, which is hereby incorporated by reference. Capitalized terms not defined in these Additional Terms are as defined in the User Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. BACKGROUND AND ACCEPTANCE. You and Boostly have entered into the Agreement pursuant to which Boostly granted Users certain rights to access and use the Platform. These Additional Terms specify the terms under which You may order Additional Products and Services. Please read these Additional Terms carefully before submitting any order for Additional Products and Services, because by submitting any such order, You agree to be bound by these Additional Terms. The person submitting any order represents that he or she is an authorized representative of User capable of binding User to these Additional Terms. If there is any conflict between these Additional Terms and the terms of the Agreement, these Additional Terms shall prevail.

 

2. TERMS SPECIFIC TO MARKETING SERVICES.

  • a. The parties shall agree on the scope and timing of all marketing services, any deliverables to be created by Boostly (the “Deliverables”), and the Fees, expenses, and taxes associated therewith.

  • b. Boostly shall retain all intellectual property rights in and to the Deliverables, including all copyrights and trademarks; provided, however: (i) upon the payment of all Fees, expenses, and taxes due and owing for such Deliverable, Boostly shall be deemed to have granted User a non-exclusive, irrevocable, world-wide, perpetual, fully paid-up, and royalty-free license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, modify, maintain, support, and otherwise exploit such Deliverable; (ii) if Boostly creates a Deliverable solely, exclusively, and specifically for User, such as a logo, and Boostly agrees in a writing that such Deliverable is to considered a “work-made-for-hire” within the meaning of the Copyright Act of 1976, as amended, User shall own all right, title, and interest in and to such Deliverable, including all intellectual property rights, upon User’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable and such Deliverable shall be considered a “work-made-for-hire; and (iii) in the event (and to the extent) that any Deliverable described in subsection (ii) above does not constitute a “work-made-for-hire,” Boostly assigns to User (upon User’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable) all rights, title, and interest in and to such Deliverable, including all intellectual property rights.

  • c. Boostly represents and warrants that it shall perform any marketing services in a professional and workmanlike manner.

  • d. Printing of additional Deliverables may incur an Add-On Fee and taxes associated with the cost of printing and/or shipping and shall be accomplished upon Your completed payment.

 

3. TERMS SPECIFIC FOR OTHER ADDITIONAL PRODUCTS.

  • a. BOOSTLY, NOT BEING THE SUPPLIER OR MANUFACTURER OF ANY OF THE OTHER ADDITIONAL PRODUCTS SOLD ON THE PLATFORM OR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE OTHER ADDITIONAL PRODUCTS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.

  • b. To the extent permissible under the applicable suppliers’ and/or manufacturers’ warranties, upon Your complete payment of the Add-On Fees and taxes in connection with a purchase for other Additional Products, Boostly shall use commercially reasonable efforts to pass through such warranties to You and otherwise facilitate the resolution of any warranty issues between You and such third parties with respect to the other Additional Products.

 

4. PAYMENT. Payment for all orders for Additional Products and Services is governed by Section 4 of the Agreement.

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