Customer Terms of Service

THESE TERMS OF SERVICE (THE “AGREEMENT”) GOVERN THE CUSTOMER’S ACCESS AND USE OF BOOSTLINGO’S PRODUCTS UNLESS THE CUSTOMER HAS FULLY EXECUTED A MASTER AGREEMENT WITH BOOSTLINGO, IN WHICH CASE SUCH MASTER AGREEMENT GOVERNS, OR UNLESS THE 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 PRODUCTS, 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.

1. 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.

“Artificial Intelligence” means a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.

“Boostlingo AI” means any real-time content captioning (open or closed captions), transcription, note-taking, or related product or service that uses Artificial Intelligence to provide any of the foregoing and that are provided by Boostlingo, including without limitation captioning for any media live-streamed through any online or third party platform, augmented with a glossary tool feature enabling Authorized Users to define, organize, and access key terms or concepts within the User Content.

“Authorized Users” means any of Customer’s employees, customers or other third parties to whom the Customer gives access to the Products and Services that meet requirements of this Agreement applicable to “Authorized Users”.

“Beta Products” refers to the second phase of software testing in which a sampling of the intended audience samples a product before its general release, and in return, Customer provides Boostlingo feedback about the Beta Product. Use of Beta Products by Customer is optional.

“Boostlingo” means Boostlingo, LLC and its Affiliates.

“Boostlingo On-Demand” means any meeting, call, or conference offered by Boostlingo via its Products, including, but not limited to, remote consecutive interpretation, VRI, OPI, and related services and hybrid configurations. For clarity, Boostlingo On-Demand will require access to the BHUB (as defined below).

“Boostlingo Events” means any high-value meeting and conferencing product offered by Boostlingo under the name “VoiceBoxer,” “BoostEvents,” “Boost SI,” or “Boost RSI,” including, but not limited to, remote simultaneous interpretation, video remote conferencing, on-site multilingual meetings, and hybrid events in any configuration, offered as Boostlingo Events a standalone product or in conjunction or integrated with other hardware or software.

“Boostlingo IMS” means interpretation management services, namely, requesting, scheduling, interpreter assignment, and interpretation delivery, sending alerts and notifications via email and SMS, related reporting, customer and interpreter invoicing, interpreter qualification and compliance management, and integrating with client-specific platform(s), and other related services. Boostlingo IMS includes a white-labeled delivery platform of remote interpreting services (OPI/VRI) to end customers with the ability to route calls to the customer’s own interpreting pool or to use the BHub (as defined below) for remote interpreting services.

“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. Confidential Information includes but is not limited to presentation materials, attendee information, customer lists, employee names, pricing data, supply sources, financial data, marketing materials, production systems, merchandising systems, plans, methods, processes, formulae, compositions, inventions, machines, computer programs, products, and research.

“Delivered Material” means the captions, caption files, transcripts, or other similar directly relevant files that Boostlingo produces based on User Content and delivers to the Customer in connection with an Order Form.

“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.

“Privacy Policy” means Boostlingo’s Privacy Policy can be found at https://boostlingo.com/privacy-policy or such other URL locations which can be found on Boostlingo’s website as Boostlingo may provide from time to time.

“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 the Customer, including any Documentation. For purposes of this Agreement, Boostlingo On-Demand, Boostlingo Events, and Boostlingo IMS shall be considered Products.

“Services” means any professional services, including implementation and installation services, training services, customized enhancements to the Services, consultancy services, or services agreed upon by the parties and outlined in an Order Form or any additional Product Support purchased under an Order Form. Boostlingo may require the Customer to execute 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.”

“User Content” means the information or content, including videos, audio recordings, illustrations, or texts, regardless of the medium, that the Customer shares, uploads, or submits in connection with its access to or use of the Products or Services.

“Web Hosted Services” means 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. PRODUCTS.

2.1   Boostlingo On-Demand/Boostlingo IMS. In the instance Customer purchases Boostlingo On-Demand or Boostlingo IMS from Boostlingo, Customer agrees and acknowledges that Customer’s access to and use of Boostlingo On-Demand or Boostlingo IMS is contingent upon compliance with the terms and conditions set forth below:

2.1.1        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.

2.1.2        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 outlined in the applicable Order Form. Customer shall be solely responsible for the 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 per the terms outlined in Exhibit A.

2.2   Product Capabilities & Features.

2.2.1        Boostlingo Professional Interpreter Network.The Products enable Boostlingo customers to request on-demand interpretation services via Boostlingo’s mobile applications, landline phones, or Boostlingo’s website portal through third-party providers (“BHub” or “BPIN”), including independent interpretation service providers under partner agreement with Boostlingo (“BHub 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 BHub Partners in the BHub to ensure that they meet the BHub Code of Conduct and Compliance and Quality standards. Boostlingo makes no guarantee, representation, or warranty as to the availability of any BHub Partner nor that any on-demand OPI or VRI call placed via the BHub 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 THE 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 BHub Partner and may route interpretation requests to their own internal interpreter pool (known as “Internal Calls”).

2.2.2                       OPI Audio Recording. 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 ninety (90) days. After the retention period, any call recording files will be automatically deleted from Boostlingo cloud. The laws regarding the notice and notification requirements of such recorded conversations vary by location. Customer acknowledges and agrees that Customer is solely responsible for providing any notices to, and obtaining consent from, individuals in connection with any recordings as required under applicable law. 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.

2.2.3                       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.

2.2.4                       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: (i) for security reasons, (ii) if Customer or any of its employees or contractors breach this Agreement, (iii) if Customer or its employees or contractors use the Products in ways not permitted by this Agreement, (iv) if the Products are not functioning properly, or (v)if Customer fails to pay any and all fees owed to Boostlingo when due.

2.2.5                       Call Log Data. Customer agrees and acknowledges that to the extent Customer does not use the Products and Services natively or has not fully integrated its own technology or software with the Products and Services, Boostlingo is limited in the call log data it can collect or provide. Upon the Customer’s written request, Boostlingo shall provide a report detailing the time stamps for: (i) when the Customer or its Users initiated a call to the BHub; (ii) when a BHUB interpreter answered an OPI or VRI call; and (iii) when the call was disconnected from the BHUB (“Call Log Data”). Notwithstanding the foregoing, Boostlingo is not responsible for any discrepancies, omissions, or inaccuracies contained in the Call Log Data, except for the initiation, answer, and end times.

2.3   Boostlingo Events. In the instance Customer purchases Boostlingo Events from Boostlingo, Customer agrees and acknowledges that Customer’s access to and use of Boostlingo Events is contingent upon compliance with the terms and conditions set forth below:

2.3.1               Scope. Customer has engaged Boostlingo to provide simultaneous interpretation and related services using its Boostlingo Events product (the “Boostlingo Events Services”). The Boostlingo Events Services shall take place on such date as the Customer shall need such services (each such date, a “Services Date”) and at such time chosen by the Customer (the “Services Time”) on each Services Date. The duration of the Boostlingo Events Services for each scheduled Services Date shall be estimated in advance by the Customer (the “Services Duration”) but is subject to change at Customer’s written request.

2.3.2               Remuneration. For any Boostlingo Events Services requested by Customer, Customer shall pay to Boostlingo the sums outlined in the applicable Order Form for such services (together, the “Service Fee”). Note the total final Services Duration for each provision of Services shall be, for purposes of invoicing Customer, rounded up to the next hour. The Boostlingo Events Services are expected to include presentation interpretation from any one or more source language(s) the Customer may require (the “Source Language”) into any one or more target languages the Customer may designate (the “Target Language). The Service Fee may be increased if the presentation associated with the Boostlingo Events Services involves Services Duration, Source Language, Target Languages, or any other Boostlingo Events Services details different from those set forth in any Order Form. In the event of cancellation of the Boostlingo Events Services by the Customer (“Cancelled Event”) within seven (7) business days of the Services Date (“Cancellation Period”), or any other time frame agreed to in the applicable Order Form, Customer shall pay the balance of the Service Fee to Boostlingo immediately upon such cancellation. In cases where the Customer requests to reschedule the Boostlingo Events Services (“Rescheduled Event”) within the Cancellation Period, Customer shall pay the balance of the Service Fee for the Cancelled Event immediately and is responsible for paying any additional costs incurred by Boostlingo for booking new interpretation suppliers for the Rescheduled Event. Boostlingo will provide written notice in advance to Customer of any rescheduling costs. Notwithstanding the foregoing, in the event Boostlingo interpretation suppliers require special terms (i.e., longer notice period for cancellations) that differ from those contained herein, Boostlingo will advise Customer, in writing, of such terms.

2.3.3               Additional Services. Customer shall have access to the following items: (i) a participant list with analytics and (ii) chat transcripts.

2.3.4               Recording. Customer can request the Boostlingo Events Services to be recorded. If such recording is requested Customer agrees that Customer has obtained the necessary permissions to use the voice and other qualities of its presenters and interpreters in such recording. Customer acknowledges that the recording will be stored on Boostlingo servers for up to one (1) month after the Services Date, after which the data may be fully deleted.

2.3.5.              Non-Solicitation. Customer understands that from time-to-time Customer will have direct contact with Boostlingo’s subcontractors. Customer hereby agrees that Customer will not (i) solicit web presentation, language, or other services from any Boostlingo subcontractor except by engagement through Boostlingo; (ii) assist another person to solicit services from any Boostlingo subcontractor except by engagement through Boostlingo; or (iii) solicit, interfere with or entice away any current, past, or active potential Customer, Boostlingo employee, supplier, or other person having business relations with Boostlingo, either directly or indirectly, for Customer’s personal benefit or the benefit of a third party.

2.3.6               Post-Services Competition. Upon the conclusion of any Boostlingo Events Services, Customer shall not compete with the business of Boostlingo or its successors or assigns, and shall not directly or indirectly, as an owner, officer, director, employee, consultant, client, stockholder or otherwise, engage, own, manage, operate, control or participate in the ownership, management, operation or control of any business engaging in performing services similar to those performed by Boostlingo or a business substantially similar or competitive to the business of Customer. This section shall extend only for a period of two (2) years, commencing with the Services Date.

2.3.7               ISO 24019.  Customer and Boostlingo are committed to providing the highest quality services in line with international standards and acknowledge that ISO Standard 24019 Simultaneous Interpreting Delivery Platforms — Requirements and Recommendations (“Standard”) covers simultaneous interpreting delivery platforms, such as Boostlingo Events for its spoken and signed language interpretation services. Customer acknowledges that: (i) where Customer is the party that contracts or (ii) Customer is contracted by any of the speakers, signers, and/or interpreters, that Customer is responsible to inform such speakers, signers, and/or interpreters within their control or employ of the requirements set out in the Standard, and to ensure compliance therewith. Customer may access the Standard, as revised from time to time, at the following link: https://www.iso.org/standard/77590.html.

2.4   Boostlingo AI. In the instance Customer purchases a service utilizing Boostlingo AI, Customer agrees and acknowledges that Customer’s access to and use of Boostlingo AI is contingent upon compliance with the terms and conditions set forth below:

        2.4.1               Scope. Boostlingo AI provides live captioning and other accessibility related services, namely closed captioning, transcription, note-taking and other audio-description services for live events, meetings, conferences, and other events on most major platforms (e.g., Facebook, YouTube, Zoom, Vimeo, and Twitch).

        2.4.2               License. For the duration of the Term, Customer is hereby granted a limited, royalty-free, non-exclusive, non-transferable, revocable license to install, access, and/or use Boostlingo AI, for the Customer’s personal and internal business purposes. Boostlingo may terminate or suspend this license at any time, for any reason, with or without notice. Boostlingo may, but is not required to, review for accuracy any information that is generated by Boostlingo AI and is not responsible for the accuracy of such information. Customer acknowledges that: (i) Boostlingo AI services, including Delivered Materials, utilize machine learning and may not be entirely accurate in all cases, (ii) use of Boostlingo AI may result in incorrect output, exhibit “hallucinations” and unintended biases, (iii) events outside of the control of Boostlingo may result in incomplete or interrupted service; and (iv) unless Customer and Boostlingo agree otherwise, prompts and other input into Boostlingo AI and output from Boostlingo AI may be used by Boostlingo for further training of the underlying model and for further development of future products and services as described in 2.4.6 below. Boostlingo is not responsible for any direct or indirect damages or harm arising from any inaccuracies, hallucinations, biases, or other losses arising from use of Boostlingo AI except as specifically provided herein.

2.4.3               Restrictions.

            2.4.3.1. Customers and their Authorized Users may not use any Boostlingo AI products, for the following purposes:

            2.4.3.1.1. Automated Decision-Making Processes with Legal Effects: As part of an automated decision-making process with legal or similarly significant effects, unless Customer ensures that the final decision is made by a human being. In this case, Customer must take account of other factors beyond the Products’ recommendations in making the final decision.

            2.4.3.1.2. Individualized Advice from Licensed Professionals:  (i) Generating individualized advice that in the ordinary course of business would be provided by a licensed professional; this includes, for example, financial and legal advice. (ii) Generating or providing individualized medical advice, treatment, or diagnosis to a consumer or end user. Nothing in this section prohibits Customer from using Boostlingo AI products to support a licensed professional where Boostlingo AI products were not leveraged in the generation of individualized advice. However, when Customer uses Boostlingo AI products to otherwise assist in providing individualized advice (e.g., summarization) there must be a qualified person in the loop reviewing the output. For clarity, this does not otherwise prohibit using Boostlingo AI products in these industries for other purposes, such as customer support.

            2.4.3.1.3. Deceptive Activity: Creating or distributing highly deceptive manipulated digital media that is fabricated or false but presented as authentic or fact-based and intended to deliberately sway audiences towards a specific interest or agenda.

2.4.4.              Third Party Services. Boostlingo Products may provide functionality and compatibility with third-party services that allow Customer to control who may access Customer’s User Content. Customer acknowledges that if Customer enables features that allow it to share User Content with others, anyone Customer shares User Content with (including the general public, in certain circumstances) may have access to Customer’s User Content.

2.4.5               Delivered Materials. Customer acknowledges that the Delivered Materials have been prepared based on User Content and Customer’s instructions. Notwithstanding any other provision in this Agreement, Boostlingo will not be liable to the Customer or any other person for any loss, damage, cost, expense, or claim, to the extent that the Delivered Materials: (i) contain errors or omissions as a result of the User Content or the Customer’s instructions; (ii) contain “hallucinations,” biases or errors arising from the use of Boostlingo AI; or (iii) infringe the rights, including Intellectual Property Rights, of a third party.

2.4.6               Machine Learning. The Products may be implemented using machine learning or other Artificial Intelligence systems with features and implementations designed to generate statistics, calibrate data models, and improve algorithms while processing User Content and Usage Data (“Machine Learning”). Boostlingo retains ownership of all data, performance metrics, aggregated information, algorithms, training data, machine learning models, tooling, transcripts (other than Delivered Materials), learnings, or processes developed by or via the use of Machine Learning, including any annotations or output of any Artificial Intelligence and any related documentation, modifications, improvements, adaptions, or derivative works of any of the preceding (collectively “Machine Learning Data). Nothing in this Agreement shall prohibit Boostlingo from using such Machine Learning or Machine Learning Data to develop or improve our Products, or for testing, tuning, optimizing, validating, or otherwise enhancing the analytics, models, or algorithms underlying the Products. Nothing in this Agreement gives Customer any rights in or to any part of the Products or the Machine Learning Data generated by Boostlingo, or the Machine Learning Data generated while providing Products.

2.5   Usage Data. Boostlingo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Products and related systems and technologies (“Usage Data”). All Usage Data is the sole and exclusive property of Boostlingo.

2.6   Beta Product. Boostlingo may offer Beta Products at no charge. The use of the Beta Products is 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 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.

3. 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 under 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. Except as supplemented or modified by a SOW, the terms of this Agreement shall apply to such SOW; provided however, in the event of a conflict between the terms of this Agreement and the terms of the SOW, the terms of this Agreement shall govern.

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 rights, titles, and interest, including Intellectual Property Rights, in the Products, and its Confidential Information, and all enhancements, modifications, and updates thereto. 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 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. Customer agrees that except as otherwise expressly provided in the Agreement, there shall be no third-party beneficiaries to this Agreement. Excluding Customer’s rights granted herein, Customer hereby irrevocably transfers, conveys, and assigns and agrees to transfer convey and assign, exclusively to Boostlingo any rights Customer may have or may hereafter acquire or may propose to have or hereafter acquire in and to any Products, derivatives of the Products, updates or enhancements, and any works created according to this Agreement, including all patent, trademark and copyright in the Products.

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.

3.4.3.       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, alter, or permit a third party to remove or alter any proprietary notice of Boostlingo from any copy of the Products.

3.4.4.       Publicity and Marketing. Boostlingo shall be permitted to line-list Customer as a customer and use Customer’s standard logo for Boostlingo’s promotional and marketing efforts until Customer’s use of the Products expires or is otherwise terminated.

3.4.5.       User Content. All Intellectual Property Rights in the User Content remain with the Customer or its licensors. Customer grants Boostlingo and its Affiliates a limited, non-exclusive, transferrable, royalty-free, worldwide license to copy, display, upload, perform, distribute, store, modify and otherwise use the User Content to provide and improve the Products and Services and as otherwise permitted under this Agreement, including the Privacy Policy, in any form, medium or technology now know or later developed.

3.4.6        Delivered Material. Provided that Boostlingo has received full payment of the relevant Order Form for the Products and/or Services, the Intellectual Property Rights in the Delivered Materials are owned by and assigned to Customer. Customer grants to Boostlingo and its Affiliates a perpetual, irrevocable, non-exclusive, transferable, royalty-free, worldwide license to store and use the Delivered Materials to provide the Products and/or Services and for archiving and quality assurance testing and controls.

3.5   Feedback. Customer may provide Boostlingo with suggestions, comments, or other feedback (collectively, “Feedback”) concerning 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 development and/or enhancement of the Products. Boostlingo is free to disclose any Feedback on a non-confidential basis or otherwise to anyone.

3.6   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 acknowledgments, 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 concerning 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.

3.6   Use of Aggregated Data. Customer acknowledges and agrees that Boostlingo may collect, create, process, transmit, store, use, and disclose aggregated and/or deidentified data derived from Customer Data or use of the Products (“Aggregated Data”) for its business purposes, including for Machine Learning and related training, industry analysis, benchmarking, and analytics. All Aggregated Data will be in an aggregated and/or de-identified form only and will not identify Customer. Nothing in this Agreement gives Customer any rights in or to any part of the Aggregated Data. Customer acknowledges and agrees that Boostlingo owns, and may freely use, any such Aggregated Data derived from Customer’s use of any Products or Services supplied to Customer under this Agreement.

4. DATA.

4.1   Customer Data. Customer grants Boostlingo a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Products (“Customer Data”): (i) to perform Boostlingo’s obligations under this Agreement; (ii) in compliance with the Privacy Policy and (iii) as may be required by law. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Boostlingo for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting Boostlingo any right, title, or interest in the Customer Data. Customer Data shall be deemed Customer Confidential Information.

4.2   Data Security. Customer Data is maintained using industry-standard administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Boostlingo’s security safeguards include means for preventing access, use, modification, and disclosure of Customer Data by unauthorized individuals. Notwithstanding, Customer Data access may be provided: (i) to Boostlingo and other personnel to the extent necessary to provide the Products, Services, and support; (ii) as compelled by law; (iii) as set forth in the Privacy Policy; or (iv) as expressly permitted by Customer.

4.3   Data Protection. The collection, use, and disclosure of Customer Data in connection with Customer’s use of the Products is subject to the Privacy Policy. By using the Products, Customer, and each Authorized User, acknowledge that the Customer Data will be processed per the Privacy Policy and this Agreement and may be processed in a country where it was collected, as well as in countries where privacy laws may be different or less stringent, provided Boostlingo ensures compliance with applicable data protection laws. By using the Products or submitting Customer Data via the Products, Customer expressly consents to such processing. To the extent Customer or an Authorized User provides personal data or other information belonging to a third party, Customer represents and warrants that it has that person’s, organization’s, or other such third party’s proper consent, or otherwise proper authorization, to do so. In the event Customer has entered into a Data Processing Agreement with Boostlingo, such Data Processing Agreement shall govern the data handling practices between the parties and shall supersede the language contained in this Section in the event of a conflict.

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. Notwithstanding the foregoing, to the extent Boostlingo is a business associate under HIPAA, Boostlingo shall ensure that any agent or subcontractor to whom the receiving party provides PHI received from or created or received by Boostlingo on behalf of Customer agree to the same restrictions and conditions outlined in this Agreement. 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”) 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 acknowledges 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.

4.4   Data Protection Laws. Customer agrees and acknowledges that use of Products may involve the collection, use, disclosure and/or other processing of personal data and other data that is subject to laws, rules, regulations and/or guidance regarding privacy, data processing, data security and/or use of artificial information (Data Processing Rules) and regarding which Boostlingo does not have control. Therefore, Customer hereby agrees to abide by, and to indemnify Boostlingo for failure to abide by, any such Data Processing Rules including, without limitation, providing any notices to, and obtaining consent from, individuals whose information is to be processed utilizing a Product.

5. 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 Authorized 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 any employees or agents of Customer with knowledge of 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   Restrictions.  

5.4.1      License Restrictions. Customer may not: (i) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products, the documentation thereof, or any other component that may be included with or provided with the Products; (ii) rent, lease or otherwise distribute the Products or the documentation thereof, except as expressly permitted in Section 2 of this Agreement; (iii) 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; (iv) reverse engineer, decompile, disassemble, or attempt to gain , directly or indirectly, in whole or in part; the source code of any Product; (v) use or access the Products to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (vi) exploit the Products in any unauthorized way whatsoever, including by trespass or burden (e.g., transmitting corrupted files, spyware, adware, or any other software or programs) or deploying spiders, web-bots, screen-scrapers, or web crawlers; or (v) use the Products or Delivered Material or any component, portion, or output either of the forgoing, to train any Artificial Intelligence.

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.

6. 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. Boostlingo reserves the right to change its prices upon thirty (30) days’ written notice to Customer. Prices are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature including, for example, value-added; sales; use; or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under any applicable Order Form. If Boostlingo has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Boostlingo will invoice Customer and Customer will pay that amount unless Customer provides Boostlingo with a valid tax exemption certificate authorized by the appropriate taxing authority.

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 made by wire transfer, ACH bank transfer, or credit card. For clarity, checks are not an acceptable form of payment, unless otherwise approved by Boostlingo in writing. 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 Boostlingo 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 Boostlingo in writing within sixty (60) days of 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. For purposes of this Section 6.5, a call is no longer considered “active” when Customer’s phone line is disconnected from the call. Boostlingo is not responsible for overbilling related to any active OPI calls 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 outlined in the applicable reseller agreement between such reseller and Customer.

7. COMPLIANCE.

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, to obtain 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.

8. PRODUCT SUPPORT.

8.1   In General. Products are made available with standard Product Support for no additional charge. Product Support is made available per the terms and conditions outlined 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; (iii) Customer’s use of Products other than as specified in the Documentation; (iv) Products that Customer has not installed and implemented all available maintenance release(s); or (v) Products where Customer has not paid the applicable fees under the Agreement or any Order Form when due.

9. CONFIDENTIALITY.

9.1   Confidentiality. During the Term of this Agreement, each party may disclose 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 before 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 broad in scope as the provisions of this Section or are otherwise legally obligated not to disclose such Confidential Information. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution (no less than reasonable care) in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets. The Receiving Party shall report to the Disclosing Party any use or disclosure of Confidential Information not provided for by this Agreement of which the Receiving Party becomes aware. The Receiving Party acknowledges that due to the unique nature of the Disclosing 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 disclosed by the Disclosing Party along with any summaries, copies, descriptions, excerpts, or extracts thereof in the possession of the Receiving Party, shall remain the property of the Disclosing Party. Upon the Disclosing Party’s written request, the materials referenced in this Section shall be destroyed or promptly returned to the Disclosing Party. 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 following such Party’s security, e-mail retention, and/or disaster recovery procedures; or (b) are kept by the Receiving Party for record-keeping, archival, or governance purposes in compliance with its 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.

10. 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   Customer Warranties. Customer warrants that:

(i) it has no legal disability or contractual restriction that prevents it from entering into this Agreement; (ii) it owns (or has sufficient rights to) the User Content; (iii) it has the full right, power and authority to grant Boostlingo the license to User Content in accordance with this Agreement; (iv) it has obtained all necessary consents to the collection and use of any personal data or other sensitive information in the User Content in order for Boostlingo to store and use the User Content to provide the Products and Services in accordance with this Agreement including, without limitation, Section 7 above; (v) the User Content, and use of it by Boostlingo, its Affiliates and contractors in accordance with this Agreement (including to produce the Delivered Materials), does not infringe the rights, including Intellectual Property Rights, publicity, personality or privacy or data protection rights, of any third party; and (vi) the User Content, and use of it by Boostlingo, its Affiliates and contractors in accordance with this Agreement (including to produce the Delivered Materials), does not violate any applicable laws, statutes or regulations.

10.3   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 the 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  Limited Warranties; 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 (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BOOSTLINGO DOES NOT WARRANT THAT THE PRODUCT OR ANY PORTION OF THE PRODUCT (OR CUSTOMER’S ACCESS THERETO), OR ANY DATA, MATERIALS OR CONTENT OFFERED THROUGH OR PROCESSED BY THE PRODUCTS, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BOOSTLINGO DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. BOOSTLINGO IS NOT RESPONSIBLE FOR THE FAILURE TO STORE OR MAINTAIN ANY USER DATA, CONTENT OR TRANSCRIPTIONS, USER COMMUNICATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. BOOSTLINGO MAKES NO WARRANTY ABOUT THE COMPLETENESS OR ACCURACY OF THE TRANSCRIPTION. 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. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, BOOSTLINGO DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT BOOSTLINGO IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

11. 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 admission concerning a claim without Boostlingo’s prior written consent. Any settlement that requires the Customer to admit liability must have Customer’s prior written consent, which shall not be unreasonably withheld or delayed. Customer also has the right to join the defense with its preferred counsel at its own expense. 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 attorney’s 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 acting on Customer’s behalf or under Customer’s authority 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.

12. 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, IN THE CASE OF BOOSTLINGO IMS OR BOOSTLINGO ON-DEMAND, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY, OR, IN THE CASE OF BOOSTLINGO EVENTS, THE SERVICE FEE ASSOCIATED WITH THE EVENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT 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: (i) a party’s breach of its confidentiality obligations outlined in Section 9 (Confidentiality), (ii) a party’s fraud or willful misconduct, (iii) Customer’s breach of Sections 3.2 (Customer Responsibilities) or 3 (Product Usage & Rights), or (iv) a party’s breach of its indemnity obligations outlined in Section 11 (Mutual Indemnification).

13. 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 Authorized User or the Customer account to: (i) to prevent damage to, or degradation of, the Products or Boostlingo’s systems; (ii) to comply with any law, regulation, court order, or other governmental request; or (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 such suspension.

13. 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 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 Boostlingo a certification of destruction.

13.4.2.  During the applicable Order Form 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 Order Form 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.

14. 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. If the Customer, or its Authorized 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. The following provisions include the law that will apply in the event of any dispute or lawsuit arising out of or in connection with this Agreement and the courts that have jurisdiction over any such dispute or lawsuit. The accompanying terms depend on where the Customer is domiciled in accordance with the following table. All proceedings are to be conducted in English.

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 in this Agreement are for convenience purposes only and shall not affect its meaning or interpretation. 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.

Term

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.

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Onboarding & Training

Boostlingo will assist the Customer’s admin with onboarding and training on how to use the Products, as applicable.

Customer Requirements

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; (iii) access to Customer’s personnel, hardware, and any additional systems involved in discovering the problem, as needed; and (iv) 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.

Support Hours

Boostlingo On-Demand

• Boostlingo On-Demand’s technical support is available via email ([email protected]) and via phone at 512-593-5215. 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 weekdays (excluding holidays) from 9:00 AM to 7:00 PM EST and its phone coverage hours are weekdays (excluding holidays) from 10:00 AM to 6:00PM EST.

Boostlingo IMS

• Boostlingo IMS’ technical support may be reached via email ([email protected]) or via phone at 844-246-8468,and shall be available during the hours of 9:00AM to 5:00PM PST on weekdays (excluding holidays). 

Boostlingo Events

• Boostlingo Events’ technical support may be reached via email ([email protected]) or in-event technical support messaging, and shall be available during the hours of 9:00AM to 12:00AM CET on weekdays (excluding holidays), and upon prior request outside normal hours of availability or on holidays.

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

Partners

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.