Customer Terms of Service
THESE TERMS OF SERVICE (THE “AGREEMENT”) GOVERN CUSTOMER’S ACCESS AND USE OF BOOSTLINGO’S PRODUCTS, UNLESS CUSTOMER HAS FULLY EXECUTED A MASTER AGREEMENT WITH BOOSTLINGO IN WHICH CASE SUCH MASTER AGREEMENT GOVERNS, OR UNLESS CUSTOMER HAS FULLY EXECUTED AN END USER LICENSE AGREEMENT (“EULA”) WITH AN AUTHORIZED BOOSTLINGO RESELLER FOR THE PROVISION OF BOOSTLINGO PRODUCTS, IN WHICH CASE THAT EULA GOVERNS AND RELATED QUESTIONS ABOUT THE TERMS OF THE SUBSCRIPTION SHOULD BE DIRECTED TO THE AUTHORIZED BOOSTLINGO RESELLER. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (3) USING BOOSTLINGO’S PRODUCTSS, CUSTOMER AGREES TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS.
Boostlingo may update or make changes to these terms from time to time. Boostlingo encourages Customer to periodically review and check this Agreement for updates to stay informed about the terms that govern Customer’s use of the Services. Customer’s continued use of the Services after Boostlingo makes any changes is deemed to be an acceptance of those changes. The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes, or as otherwise restricted by this Agreement. Boostlingo’s direct competitors (or third-party agents acting on behalf of such direct competitors) are prohibited from accessing the Services.
- DEFINITIONS. For purposes of this Agreement,
“Affiliate” means an entity that directly or indirectly through one or more entities, controls, is controlled by, or is under common control with, the specified entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Users” means any of Customer’s employees, customers or other third parties to whom the Customer gives access to the Products and Services.
“Beta Products” refers to the second phase of software testing in which a sampling of the intended audience samples a product prior to its general release, and in return, Customer provides Boostlingo feedback about the Beta Product. Use of Beta Products by Customer is optional.
“Confidential Information” means all information or material disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, which: (i) gives a party some competitive business advantage, gives a party the opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of the Disclosing Party; and (ii) is either (a) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (b) known by the parties to be considered confidential and proprietary or (c) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Products and Services are deemed Confidential Information of Boostlingo.
“Documentation” means Boostlingo’s then current generally available documentation, specifications, user manuals, help and training materials, etc. for the Services, as updated from time to time, provided during Customer’s onboarding or as Boostlingo may provide upon request.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“OPI” means over-the-phone interpreting.
“Order Form” means a purchasing document or other similar document, such as a purchase order or statement of work, specifying the Products to be provided hereunder that is entered into between Boostlingo and Customer, including any addenda and supplements thereto.
“Product Support” means any maintenance and support of any Products provided by Boostlingo.
“Products” means any Software, Services and/or Web Hosted Services that Boostlingo offers to Customer, including any Documentation.
“Services” means any professional services, including implementation and installation services, consultancy services, or services agreed upon by the parties and set forth in an Order Form or any additional Product Support purchased pursuant to an Order Form. Boostlingo may require Customer to enter into a statement of work (“SOW”) detailing the Services to be performed.
“Service Deliverable” means the items to be delivered to Customer in connection with any Services Boostlingo performs pursuant to a SOW, such as consulting reports, on-site training, integration work or modifications to the Software.
“Software” means the object code version of any software that may be licensed by Customer under this Agreement for installation on Customer’s systems. To the extent Boostlingo delivers any updates or enhancements to Customer as part of Product Support, such updates and enhancements will be deemed included in the definition of “Software.”
“Web Hosted Services” shall mean an application and/or database product hosted by Boostlingo or its agents and made available for remote access and use by Customer under this Agreement.
“VRI” shall mean video-remote-interpreting.
2.1 Software License. Subject to the terms and conditions of this Agreement, Boostlingo hereby grants to Customer, for use with Customer’s authorized Users, and solely for internal business purposes and not for resale or publication, a limited, non-exclusive, non-sublicensable, non-transferable fully-paid, royalty-free license to install, use, execute, display, and access the Software. The initial term of the foregoing license will be as set forth in the applicable Order Form. Apart from the foregoing limited licenses, Customer is not being granted any right, title, or interest in or to the Software, or otherwise the Products. All such rights are expressly reserved by Boostlingo.
2.2 Web Hosted Services Access. Subject to the terms and conditions of this Agreement, Boostlingo hereby grants to Customer, and Customer’s Authorized Users, solely for internal business purposes and not for resale or publication, a non-exclusive, non-transferable, right to access and use for its internal business purposes the Web Hosted Services. The initial term of the foregoing access right will be as set forth in the applicable Order Form. Customer shall be solely responsible for connection of Customer’s systems to a telecommunications service that provides Internet access for purposes of Customer’s access and use of the Web Hosted Services. Boostlingo will use commercially reasonable efforts to make the Web Hosted Services available in accordance with the terms set forth in Exhibit A.
2.3 Beta Product. Boostlingo may offer Beta Products at no charge. Use of the Beta Products are at the election of Customer and are for evaluation purposes only. Beta Products are not considered “Services” and do not come with Product Support. Beta Products may be subject to additional terms. Boostlingo reserves the right to discontinue the Beta Products at any time. Use of the Beta Products will automatically terminate at such time as Boostlingo makes such Beta Products generally available. Beta Products may be unpredictable and lead to erroneous results. Customer acknowledges and agrees that: (i) Beta Products are experimental and have not been fully tested; (ii) Beta Products may not meet Customer’s requirements; (iii) the use or operation of any Beta Products may not be uninterrupted or error free; (iv) Customer’s use of any Beta Product is for purposes of evaluating and testing the Beta Product and providing feedback to Boostlingo; (v) Customer shall inform its employees, staff members, and other users regarding the nature of Beta Products; and (vi) Customer will hold all information relating to Beta Products and Customer’s use of Beta Products, including any performance measurements and other data relating to Beta Products, in strict confidence and shall not disclose such information to any unauthorized third parties. Customer shall promptly report any errors, defects, or other deficiencies in any Beta Product to Boostlingo. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA PRODUCTS ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. Customer hereby waives any and all claims, now known or later discovered, that Customer may have against Boostlingo and its suppliers and licensors arising out of Customer’s use of the Beta Products.
- PRODUCT USAGE & RIGHTS.
3.1 Acceptance. Customer is deemed to have committed to a purchase in full for the Products and Services (regardless of any split payment terms) once an Order Form is signed and sent over to Boostlingo for processing or once payment has been tendered either through bank wire, ACH, credit card, or other form of payment.
3.2 Operation of the Products. The implementation and operation of Boostlingo’s Products and any deliverables resulting from Services performed, are done so by designated admin(s) employed or contracted by the Customer.
3.3 Professional Services. In the instance Customer purchases Services to be performed by Boostlingo, Customer may be required to sign a SOW detailing the project specifications for the Services. The completion time for any Services to be performed under a SOW, and any milestones, shall be dependent on Boostlingo’s receipt of all Customer assets and specifications necessary for the project, in addition to Boostlingo receiving a valid signed SOW for processing, as requested by Boostlingo. The turn-around time will start from the date of delivery of all such assets and specifications, not the date of Boostlingo’s receipt of the signed SOW. Customer acknowledges that delays in providing assets or specifications at the request of Boostlingo for such Services may delay the completion of the Services. Boostlingo shall not be faulted for delays caused by Customer’s failure to reasonably cooperate. Service hours purchased pursuant to a SOW or Order Form will expire upon the expiration or termination of Customer’s subscription term and will not carry over to any subsequent renewal term.
3.4 Intellectual Property.
3.4.1. Reservation of Rights. This is not a work made-for-hire agreement as defined U.S. or other applicable law. Boostlingo and its licensors own and reserve all right, title, and interest, including Intellectual Property Rights, in the Products, and any . Except for express licenses granted in this Agreement, Boostlingo is not granting or assigning to Customer any right, title, or interest, express or implied, in or to Boostlingo’s intellectual property. Any intellectual property and development work which may be created by Boostlingo, including, without limitation, ideas, know-how, techniques, enhancements or modifications to the Products or Documentation, , (collectively the “IP”) shall be the property of Boostlingo. Boostlingo retains title and full ownership rights to all such intellectual property under the copyright laws of the United States, Canada or any other jurisdiction or under any federal, state, or foreign laws.
3.4.2. Trademarks. All trademarks, services marks, designs and logos used by Boostlingo in connection with Products are the trademarks or registered trademarks of Boostlingo. All other trademarks and/or service marks are the property of their respective owners. Except as provided herein, neither Customer nor Boostlingo will use the company name, trademarks, or trade names of the other party without their prior written consent.
3.4.4. Copyrights. The Products contain material that is protected by United States copyright law and trade secret law, and by international treaty provisions. Customer shall not remove or alter or permit a third party to remove or alter any proprietary notice of Boostlingo from any copy of the Products.
3.6 Feedback. Customer may provide Boostlingo with suggestions, comments or other feedback (collectively, “Feedback”) with respect to the Products. Feedback is voluntary. Boostlingo is not obligated to hold it in confidence. Boostlingo may use Feedback for any purpose without obligation of any kind. To the extent a license is required to make use of any intellectual property in any such Feedback, Customer grants Boostlingo an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Boostlingo’s business, including the enhancement of the Products.
3.7 Third Party Software. The Products may utilize or include third party software that is subject to open source and third party license terms (“Third Party Software”). Customer acknowledges and agrees that its right to use such Third Party Software as part of the Products is subject to and governed by the terms and conditions of the open source or third party license(s) applicable to such Third Party Software, including without limitation any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control only with regard to Customer’s use of such Third Party Software. In no event shall the Software or components thereof be deemed to be “open source” or “publicly available” software.
3.8 PRODUCT CAPABILITIES & FEATURES.
3.8.1 Boostlingo Professional Interpreter Network. The Products enables Boostlingo customers to request on-demand interpretation services via Boostlingo’s mobile applications, landline phones or Boostlingo’s website portal through third party providers (“BPIN”), including independent interpretation service providers under partner agreement with Boostlingo (“BPIN Partners”). Customer acknowledges that interpretations may not be entirely accurate in all cases and that events outside of the control of Boostlingo may result in incomplete or interrupted service. Boostlingo will vet its BPIN Partners in the BPIN to ensure that they meet BPIN Code of Conduct and Compliance and Quality standards. Boostlingo makes no guarantee, representation or warranty as to the availability of any BPIN Partner nor that any on-demand OPI or VRI call placed via the BPIN for a supported language will be answered. Boostlingo reserves the right to change and update the list of supported languages for both OPI and VRI services at any time. BOOSTLINGO MAKES NO WARRANTIES REGARDING THE RESULTS OBTAINED THROUGH USE OF THE SERVICES, AND BOOSTLINGO SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF ANY INFORMATION PROVIDED OR RESULTS. Notwithstanding the foregoing, Boostlingo customers are not required to use a BPIN Partner and may route interpretation requests to their own interpreter pool (known as “Internal Calls”).
3.8.2 Recording Feature. The Products are equipped with a recording capability that allows Boostlingo to record OPI and VRI calls placed through the Products (“Recording Feature”). Boostlingo will not enable the Recording Feature, unless Customer requests in writing that it be enabled. Such request can be made at the following link: https://www.boostlingo.com/call-recording- request-form/ or at another URL provided by Boostlingo from time to time. Additional fees apply when the Recording Feature is enabled. All call recordings will be stored in the Boostlingo Cloud for a retention period not to exceed 90 days. After the retention period, any and all call recording files will be automatically deleted from Boostlingo cloud. For clarity, Boostlingo reserves the right to record OPI and VRI calls for training, quality and assurance purposes. Notwithstanding the foregoing, upon the termination or expiration of this Agreement or any Order Form, Customer may request in writing that Boostlingo delete any recorded calls in its possession or control. Customer may also request that Boostlingo certify its destruction of such recordings.
3.8.3 Feedback Mechanism. The Products are equipped with a feedback mechanism that allows Boostlingo to review Customer’s use of the Products and communicates activity involving use of the Products back to Boostlingo. Boostlingo reserves the right to use such data to evaluate the Product usage and for any purposes which Boostlingo deems useful or appropriate. For clarity, Boostlingo may also collect and use technical data and related information, including but not limited to technical information about Customer’s system, application software and peripherals, that is gathered periodically to facilitate the provision of Products updates, product support and other services (if any) related to the Products.
3.8.4 Shutdown Mechanism. The Products are also equipped with a shut-down mechanism by which Boostlingo may shut down Customer’s access to or use of the Products. Boostlingo reserves the right to use this shut-down mechanism at any time if Customer or any of its employees or contractors breach this Agreement, Customer or its employees or contractors use the Products in ways not permitted by this Agreement, and/or if Customer fails to pay the applicable subscription fees as specified in the applicable Order Form.
4.3.1 Protected Health Information. To the extent applicable to the Services provided to Customer, Boostlingo agrees to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (PL 104-91), the HITECH Act provisions of the American Recovery and Reinvestment Act of 2009 (PL 111-5) and regulations enacted by the United States Department of Health and Human Services at 45 C.F.R. Parts 160 – 164 solely as it relates to the performance of Boostlingo’s obligations hereunder. In that regard, Boostlingo further agrees to comply with the provisions of the Business Associate Agreement executed by the parties in connection with this Agreement. In the event of conflict between the Business Associate Agreement and any provision of this Agreement, the terms of the Business Associate Agreement shall control.
4.3.2. Payment Card Information and other Sensitive Information. Boostlingo does not need or request any non-public consumer personally identifiable information or financial information governed by the Gramm-Leach-Bliley Act (“GLBA”) or payment card information covered by the Payment Card Industry Data Security Standards (“PCI DSS”) in order to provide its Products. Customer should never disclose, or allow to be disclosed, information protected by PCI DSS or GLBA, or other sensitive information to Boostlingo. Customer acknowledge that Boostlingo does not take steps to ensure its products are GLBA or PCI DSS compliant. All obligations of the above regulations remain solely with the Customer.
- CUSTOMER OBLIGATIONS.
5.1. Connectivity. Customer shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Products, including, without limitation, modems, hardware, software, and long distance or local telephone service. Customer shall be responsible for ensuring that such equipment or ancillary services are compatible with the Products. Notwithstanding the foregoing, Customer is solely responsible for all telecommunication or Internet connections and associated fees required to access and use the Products. Boostlingo is not responsible for (i) Customer’s access to the Internet, (ii) interception or interruptions of communications through the Internet, or (iii) changes or losses of data through the Internet.
5.2. User Credentials. Customer shall keep the User credentials (e.g., usernames and passwords) confidential and not disclose any such credentials to any third party. In addition, Customer shall notify Boostlingo immediately upon discovery of the disclosure of any such credentials, and upon any termination of the engagement of any employees or agents of Customer with knowledge of any such credentials, so that such credentials can be changed. Customer is responsible for any use or misuse of the Customer’s Boostlingo account resulting from any third party using a password or username created by Customer or any of its employees or contractors.
5.3 Access Restriction. Boostlingo reserves the right to deny to any user, in its sole discretion, access to the Products or any portion thereof without notice. Customer shall be solely responsible for securing access to the Customer Data. Boostlingo shall in no event be liable for any unauthorized access to any data stored using the Products or Boostlingo website.
5.4.1 License Restrictions. Customer may not: (i) modify or make derivative works of the Products, the documentation thereof, or any other component that may be included in the Products or provided with the Products, nor rent, lease or otherwise distribute the Products or the documentation thereof, except as expressly permitted in Section 2 of this Agreement; (ii) assign, sublicense, rent or otherwise transfer Customer’s access and use rights under this Agreement to the Products without the prior written approval of Boostlingo; (iii) reverse engineer, decompile, or disassemble the Products, directly or indirectly, in whole or in part; except to the extent permitted under applicable law; (iv) copy the Products
5.4.2 Other Restrictions. Customer may not use the Products to: (i) defame, abuse, harass, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (ii) conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail, or multi-level marketing campaigns; (iii)publish, post, distribute, disseminate, or link to any: (a) defamatory, infringing, or unlawful topic, name, material, or information; (b) software or other material protected by intellectual property laws, copyright, rights of privacy or publicity, or other proprietary rights, unless Customer owns or controls such rights or have received all necessary consents for Customer’s use of such software and other materials;(iv) harvest, collect or aggregate usernames or email addresses for any purpose; (v) restrict or inhibit any other user from using and enjoying its rights with respect to Boostlingo or its website, interfering with or disrupting the Boostlingo website, the Boostlingo service servers or network connected to BoostLingo; or (vi) violate any applicable government laws, rules or regulations.
- PAYMENT TERMS.
6.1 Prices. Prices will be specified by Boostlingo and will be applicable for the period specified in the Order Form (as applicable). If no period is specified, prices will be applicable for thirty (30) days. While pricing adjustments are not common or expected, prices may be subject to increase in the event of an increase in Boostlingo’s costs or other circumstances beyond Boostlingo’s reasonable control; and (ii) prices may be subject to increase upon a renewal of an Order Form, or in the event Customer adds-on or upgrades Products during the term of an Order Form. Prices are exclusive of taxes, including sales, use, excise, value added, and similar taxes or charges imposed by any government authority; domestic and international shipping charges. Boostlingo reserves the right to change its prices upon thirty (30) days written notice to Customer.
6.2 Due Date; Late Payments. Amounts due for Products may be invoiced by Boostlingo monthly or as otherwise expressly provided in the Order Form. Customer agrees to pay the net amount of each invoice without offset or deduction within fifteen (15) days after the date of Boostlingo’s invoice (unless otherwise noted on the invoice). Payment for all invoices shall be paid by bank wire transfer, ACH bank transfer or credit card. For clarity, checks are not an acceptable form of payment. If any amount is not paid upon the due date, Boostlingo shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all Boostlingo’s reasonable costs of collection, including but not limited to reasonable attorney’s fees.
6.3 Disputed Payments. If Customer reasonably disputes any portion of a Boostlingp invoice, Customer must pay the undisputed portion of the invoice and submit written notice of the claim (with sufficient detail of the nature of the claim, the amount and invoices in dispute and information necessary to identify the affected Product(s)) for the disputed amount. All claims must be submitted to Boostling in writing within sixty (60) days from the date of the invoice for those Products. Customer waives the right to dispute any charges not disputed within such sixty (60) day period. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest at the rate referenced in Section 6.2. Notwithstanding the foregoing, Boostlingo will not exercise its right of suspension in the event Customer provides Boostlingo notice that Customer disputes such charges, in good faith, pays all undisputed charges on time, and cooperates diligently to resolve the dispute.
6.4 Application of Payment. Any payment received from Customer may be applied by Boostlingo against any obligation owing from Customer to Boostlingo.
6.5 Billing for OPI Calls. Customer acknowledges and agrees that OPI calls made through the Products are billed by the number of minutes a call is active. A call is no longer considered “active” when the customer’s phone line is disconnected from the call. Customer is responsible for disconnecting the phone line from the call. Boostlingo is not responsible for overbilling to the extent Customer failed to disconnect the call. For avoidance of doubt, Customer should ensure any calls placed through a conferencing line properly disconnects from an OPI call.
6.6 Reseller Purchases. In the event Customer acquires Products via a reseller, then all payment-related terms will be set forth in the applicable reseller agreement between such reseller and Customer.
7.1 Anti-Bribery & Corruption. Customer will not: (a) make any unlawful payments to any government official or employee; (b) make any unlawful payment to any person, or unlawfully provide anything of value (whether as property, services, or in any other form) to any person, for the purpose of obtaining an improper business advantage; or (c) agree, commit, or otherwise offer to undertake any of the foregoing actions in connection with this Agreement or any related activities.
7.2 International Trade Compliance. The sale, resale, or other disposition of Products and any related technology or documentation are subject to various economic sanctions, export control laws, and other restrictive trade measures administered by the U.S. and other applicable governments. Because these laws may have extraterritorial effect, Customer will comply with all such measures, where applicable, including, without limitation: (a) the Export Administration Act of 1979, as amended (50 U.S.C. § 2401–2420) and the Export Administration Regulations, 15 C.F.R. §§ 730–774 (“EAR”); (b) the Arms Export Control Act, 22 U.S.C. § 2778, and the corresponding International Traffic in Arms Regulations (“ITAR”); (c) the economic sanctions laws and regulations enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), 31 C.F.R. §§ 500, et seq., and the U.S. Department of State; and (d) the anti-boycott regulations, guidelines, and reporting requirements under the Export Administration Regulations and Section 999 of the Internal Revenue Service Code. Customer understands and acknowledges that it is solely responsible for complying with such laws whenever applicable. Customer further understands and acknowledges that it will not directly or indirectly export, import, sell, disclose, or otherwise transfer any Products to any country or party subject to such restrictions, and that it is solely responsible for obtaining any license(s) to export, re-export, or import the Products that may be required.
7.3 US Government Restricted Rights. If Customer is the United States Government or is acquiring the right to access and use the Products on behalf of the United States Government, then the United States Government agrees that: (a) if the right to access and use the Products is acquired by or supplied to the Department of Defense (“DOD”), the Products shall be classified as “Commercial Computer Software” and the government is acquiring only “restricted rights” in the Products and its documentation, as defined in Clause 252.227-7013(c)(1) of the DFARS; (b) for any part of the United States Government other than DOD, the government’s rights in the Products or Boostlingo website and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, for NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.
- PRODUCT SUPPORT.
8.1 In General. Products are made available with standard Product Support for no additional charge. Product Support is made available in accordance with the terms and conditions set forth in Exhibit A.
8.2 Exclusions. Notwithstanding the foregoing, Boostlingo will have no obligation to support: (i) services, hardware, or software provided by anyone other than Boostlingo; (ii) Product issues caused by Customer’s negligence, abuse or misapplication; or (iii) Customer’s use of Products other than as specified in the Documentation.
9.1 Confidentiality. During the Term of this Agreement, each party may disclose to the other certain Confidential Information to the other party. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is known to the receiving Party prior to receipt hereunder from a source other than one having an obligation of confidentiality to the disclosing Party, (b) becomes lawfully known (independently of disclosure by the disclosing Party) to the receiving Party from a source other than one having an obligation of confidentiality to the disclosing Party, (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement, or (d) is independently developed by the receiving Party without use of the Confidential Information.
9.2 Protection of Confidential Information. Except as expressly provided in this Agreement, the receiving Party will not use or disclose any Confidential Information of the disclosing Party without the disclosing Party’s prior written consent, except disclosure to and subsequent uses by the receiving Party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving Party’s obligations under this Section. Subject to the foregoing nondisclosure and non-use obligations, the receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving Party uses to protect the receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
9.3 Return or Destruction of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either Party to the other Party, and all summaries, copies, descriptions, excerpts or extracts thereof that are in the possession of the other Party, shall be and remain the property of the disclosing Party and shall be promptly returned to the disclosing Party, and the receiving Party shall use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts or extracts thereof in their possession upon the disclosing Party’s written request. The receiving Party shall have no obligation to delete or destroy copies that: (a) are contained in an archived computer system backup that was made in accordance with such Party’s security, e-mail retention, and/or disaster recovery procedures; or (b) are kept by a Party for record-keeping, archival, or governance purposes in compliance with such Party’s document retention policies. Any such retained Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained. Notwithstanding the return or destruction of the Confidential Information, the receiving Party will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement. At the disclosing Party’s option, the receiving Party will provide written certification of its compliance with this Section.
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
10.1 Representations. Each party represents that (i) it has validly entered into this Agreement and has the legal power to do so; and (ii) it will comply with the laws, rules and regulations applicable to its business and obligations under this Agreement.
10.2 Boostlingo Warranties. Boostlingo warrants that the purchased Products will perform materially in accordance with the applicable Documentation and that the Services will be provided in a professional, workmanlike manner consistent with this Agreement. For any breach of an above warranty, Customer’s exclusive remedies are those described in Sections 13.3 (Termination). Boostlingo’s warranties shall not be effective and Boostlingo shall have no obligation or liability to Customer if (i) the Products are not substantially used in accordance with the Documentation or any applicable Order Form; (ii) the Products have been altered, modified or revised by Customer or any other entity engaged by Customer without Boostlingo’s written approval; or (iii) the Products are inoperable for any other cause within Customer’s control. Boostlingo does not warrant or support third party software or services, except as expressly specified in a warranty stated in an Order Form…
10.4 Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION, THE PRODUCTS, INCLUDING BETA PRODUCTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND BOOSTLINGO HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE PRODUCTS MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NO AFFILIATE, CONTRACTOR, EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR OR REPRESENTATIVE OF BOOSTLINGO IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. NO AFFILIATE, CONTRACTOR, EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR OR REPRESENTATIVE OF BOOSTLINGO IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. BOOSTLINGO DOES NOT PROVIDE LEGAL OR SECURITY ADVICE.
- MUTUAL INDEMNIFICATION.
11.1 Boostlingo Indemnity Obligations. Boostlingo will indemnify, defend, and hold harmless Customer from and against all losses, damages, costs or expenses (including settlement costs and reasonable attorneys’ fees) arising out of a claim by a third party against Customer alleging: (i) Boostlingo’s gross negligence or willful misconduct; or (ii) Customer’s authorized use of the Products infringes or misappropriates any copyright, trade secret, issued patent or registered trademark of the third party, provided that Boostlingo will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Boostlingo to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer at Boostlingo’s expense. The foregoing indemnification obligation of Boostlingo will not apply: (1) if the Product is combined with other non-Boostlingo products, services or processes not authorized by Boostlingo, but solely to the extent the alleged infringement would not have arisen absent such combination; (2) to any modifications of the Products, other than any made by Boostlingo; (3) to any unauthorized use of the Products; (4) to any action arising as a result of Customer content or (5) if Customer settles or makes any admissions with respect to a claim without Boostlingo’s prior written consent. Any settlement requiring Customer to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and Customer may join in the defense with its own counsel at its own expense. THIS SECTION 11.1 SETS FORTH BOOSTLINGO’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11.2 Customer Indemnity Obligations. Customer agrees to defend, indemnify and hold harmless Boostlingo, and its employees, officers, contractors, investors, directors, agents, representatives, licensors, licensees and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from (a) Customer’s use of the Products in breach of the Agreement; (b) Boostlingo’s authorized use of the Customer Data; (c) Customer’s violation of any warranty, representation or covenant under this Agreement, (d) Customer’s violation of any third party rights, including, without limitation, infringement of any copyright, trademark or patent right, violation of any other proprietary right and invasion of any privacy or publicity rights, and (e) Customer’s use or misuse of Customer’s Boostlingo account by Customer or any third party using Customer’s password(s) and/or user name(s). These obligations will survive any termination of this Agreement or Customer’s relationship with Boostlingo.
- LIMITATION OF LIABILITY.
12.1 Limitation of Liability. NEITHER PARTY’S LIABILITY RELATED TO THIS AGREEMENT, INCLUDING ANY DOCUMENTS AND ORDER FORMS EXECUTED IN CONNECTION HEREWITH WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
12.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY BUSINESS INTERRUPTION, LOSS OF DATA, LOST PROFITS, LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 Exclusions. Notwithstanding the foregoing, the above limitations will not apply to claims arising from breaches of a party’s confidentiality obligations, a party’s fraud or willful misconduct, or breaches of Sections 3.2 (Customer Responsibilities), 3 (Product Usage & Rights), or 11 (Mutual Indemnification).
- TERM AND TERMINATION.
13.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect until all Order Forms terms have expired or otherwise have been terminated (“Term”).
13.2 Suspension. In the event Boostlingo, in good faith believes or otherwise becomes aware of an Authorized User’s violation of this Agreement, then Boostlingo may specifically request that Customer suspend such Authorized User’s access to and use of the Products. In the event Customer fails to suspend such non-compliant user, Customer hereby authorizes Boostlingo to suspend such User. The duration of such suspension is at the sole determination of Boostlingo and shall continue until such time as Boostlingo determines that the applicable user has cured the breach resulting in such suspension. Boostlingo may also suspend access and use of the Products with respect to any individual User or the Customer account to: (i) to prevent damages to, or degradation of, the Products or Boostlingo’s systems; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect Boostlingo from potential legal liability. Any such suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the cause of the suspension
- 3 Termination.
13.3.1 If Boostlingo believes in good faith that Customer’s ability to make payments may be impaired, or if Customer fails to pay any invoice when due and does not make such payment within ten (10) days after receipt of notice from Boostlingo of such failure, Boostlingo may, in its sole discretion, either: (i) suspend delivery or performance of any Order Form, or any remaining balance thereof, until such payment is made; or (ii) terminate any Purchase Order, or any remaining balance thereof. In either event, Customer shall remain liable to pay for any Products already received, and any Services already performed. Notwithstanding the foregoing, Boostlingo may terminate this Agreement and any applicable Order Form immediately, without notice, in the event Customer: (i) fails to comply with any of the terms and conditions set forth in this Agreement, (ii) ceases doing business, (iii) does not make any payments due for undisputed invoices within forty-five (45) days of the applicable due date, or (iv) ceases using the Products and notifies Boostlingo thereof. Boostlingo is not obligated to refund any part of the fees prepaid by Customer.
13.3.2 Termination for Convenience. Either party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other party.
13.3.3 Termination for Cause. A party may terminate this Agreement and all Order Forms issued hereunder for material breach of the terms of this Agreement or such Order Forms either (i) upon thirty (30) days’ written notice to the other party of (including the specifics of the other party’s material breach) if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, and if involuntarily filed against such party such petition or other proceeding is not withdrawn or discharged within sixty (60) days after notice thereof from the other party.
13.4 Effects of Termination.
13.4.1 Upon any termination, Customer’s right to use and access the Products and Services shall immediately cease. Customer must return or destroy all copies (original and duplicates) of such Products and Services, in accordance with this Agreement. Upon request by Boostlingo, Customer must provide to Boostlingo a certification of destruction.
- During the applicable Quote term, Customer shall have the ability to download a copy of its Customer Data contained in the Products in the form and format as such Customer Data exists in the Products. Within thirty (30) days of the termination or expiration of any applicable Order Form, Customer may request a copy of its Customer Data. Upon termination of this Agreement or applicable Quote term, Boostlingo shall have the right to delete or destroy all Customer Data in its, or its agents’ possession. Notwithstanding the foregoing, Boostlingo shall be permitted to retain copies of data contained in an archived computer system backup that was made in accordance with such its security, e-mail retention, and/or disaster recovery procedures; or (b) are kept by Boostlingo for record-keeping, archival, or governance purposes in compliance with Boostlingo’s document retention policies. Any such retained data shall remain subject to the terms and conditions of this Agreement for so long as it is retained.
- MISCELLANEOUS PROVISIONS.
14.1 Independent Contractor. Boostlingo, its personnel, agents, subcontractors, and independent contractors are not employees or agents of Customer and are acting as independent contractors with respect to Customer. Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.
14.2 Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption provided that the delayed party: (i) gives the other party notice of such cause without undue delay; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
14.3 Entire Agreement; Construction; Modifications. This Agreement, including any and all Order Forms, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The parties further agree that there are no other inducements, warranties, representations, or agreements regarding the matters herein between the parties except as expressly set in this Agreement. In the event of any conflict between the body of this Agreement and any Order Form, the body of this Agreement shall control, unless otherwise expressly stated in a signed writing by authorized representatives the parties. In the event that the Customer, or its Users, are presented with Boostlingo click-wrap, the contents of this Agreement shall supersede any conflicting terms. As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. This Agreement may not be modified, amended, or altered in any manner except by a written agreement signed by authorized representatives of the parties, and any attempt at oral modification shall be void and of no effect.
14.4 Governing Law; Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the state of Delaware, without regard to conflict of law provisions. Any action related to this Agreement shall be brought exclusively in the state or federal courts located in the State of Delaware, United States of America.
14.5 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, to an Affiliate or in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction, provided, that the assignee: (i) is not a direct competitor of the non-assigning party; and (ii) is capable of fully performing the obligations of the assignor under this Agreement; and (iii) agrees to be bound by the terms and conditions of this Agreement.
14.6 No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
14.7 Purchase Order. BOOSTLINGO SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A CUSTOMER PROVIDED PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE AND REPLACE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
14.8 Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, and payment, and any other provisions which must survive to give effect to their meaning, shall survive the termination of this Agreement.
14.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.10 Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified on the Order Form or at such other addresses as either party may in the future specify in writing to the other.
14.11 Headings; Counterparts; Electronic Signatures. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that the electronic signature of a party to this Agreement shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) shall be deemed (i) to be “written” or “in writing,” (ii) to have been signed and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files.
EXHIBIT A –
Service Level Agreement
This Service Level Agreement (“SLA”) is for the provisioning of services required to support and sustain the Products under the Agreement to which this SLA is attached.
This SLA is valid for the subscription term specified in the applicable Order Form. Termination of the Agreement and/or an Order Form will result in termination of this SLA.
Availability & Uptime
Boostlingo agrees to: (i) make the Products available to Customer pursuant to the Agreement and the applicable Order Form, (ii) provide support for the Products to Customer at no additional charge; and (iii) use commercially reasonable efforts to make the online Products available 99.5% of the time to be measured monthly, excluding any planned downtime, maintenance windows, or any unavailability caused by circumstances beyond Boostlingo’s reasonable control, such as a force majeure event in accordance with the Agreement. If Customer would like to receive status updates on the availability of Boostlingo’s Products, Customer may subscribe to receive updates at https://status.boostlingo.com/, or such other URL as Boostlingo may provide from time to time.
Customer will be assigned a designated account manager (“AM”) to assist the Customer’s admin with onboarding and training on how to use the Products, as applicable.
Customer responsibilities and/or requirements in support of this SLA include: (i) customer’s compliance with the Agreement and the applicable Order Form; (ii) reasonable availability of Customer’s admin and/or technical representative(s) when resolving a service-related incident or request; and (iii) providing proper notice of Boostlingo’s non-compliance with any Product or Service warranty in accordance with the Agreement and sufficiently detail the non-compliance in a manner that allows Boostlingo to properly assist with the remediation. Boostlingo will not be responsible for delays in remediation caused by Customer’s failure to respond to requests by Boostlingo. Customer understands that Boostlingo’s Products and Services are non-mission critical to Customer’s business.
Boostlingo’s Technical Support Team is available via phone or email. Customer may also submit a ticket for technical support here https://boostlingo.zendesk.com/hc/en-us or such other URL as Boostlingo may provide from time to time. Boostlingo’s email coverage hours are 8:00 AM to 7:00 PM EST and its phone coverage hours are from 10AM to 7PM EST (collectively, the “Support Hours”). United States National Holidays are excluded from Support Hours
Initial Response Times
In support of services outlined in this SLA, Boostlingo will initially respond to service-related incidents and/or requests submitted by Customer within the following time frames:
- Within 120 minutes for issues classified as High Priority.
- Within 24 business hours for issues classified as Medium Priority.
- Within 36 business hours for issues classified as Low Priority.
“High Priority”: Complete failure of platform or the complete unavailability of core functionality such as OPI & VRI.
“Medium Priority”: Impacted operations, core operations such as user and admin login operational but functionality impaired or requiring workarounds to achieve documented operation.
“Low Priority”: Inconvenience due to operations not performing as defined or at a significantly degraded speed
In the event Customer purchases through a Boostlingo authorized reseller or managed service provider, such reseller or managed service provider may have their own SLA associated with the purchase. Customer acknowledges that Boostlingo is not responsible nor is Boostlingo liable for ensuring compliance with such reseller or language service provider SLA.