By your use of the Services of Boomtrain Inc (“Boomtrain”), in accordance with the license agreement (“License”) between Boomtrain and the entity for which you are providing services, you agree to the Terms of Service set forth herein. You may hereinafter be referred to as “Client.”
a) “Affiliate” means any entity that is directly or indirectly controlled by or under common ownership or control with a party hereunder.
b) “Active User” means a user that, in the last 120 calendar days: (1) has had an Activity (as defined below) tracked by Boomtrain and/or (2) has received a Communication (as defined below) from Client. All users that are not Active Users are Inactive Users. For clarification, an Inactive User is a user who has not visited Client’s website or app in the last 120 days, an anonymous user who drops off Client’s website without any activity other than browsing the website, or any user to whom Client has not sent a message (email, sms, push, in-app) in the last 120 days.
c) “Activity” means any of the following, or a combination thereof: registration, usage of web services, usage of app services, user communications, submission of form data, or webpage views.
d) “Boomtrain Materials” means all text, articles, photographs, images, illustrations, artwork, video, audio, creative, and other content; software, designs, plans, source and object code, data and technical information; and all Boomtrain Marks; in each case as incorporated into the Platform and which Boomtrain developed or licensed from others prior to the execution of the Order Form, or independently from the Order Form, or as used by Boomtrain in performing the Services.
e) “Client Materials” means all text, articles, photographs, images, illustrations, artwork, video, audio, creative, and other content; software, designs, plans, source and object code, data and technical information; and all Client Marks; in each case as provided by Client for use in connection with the Services and/or Platform.
f) “Client Properties” or “Client Property,” means all Internet and Intranet sites, mobile and WAP sites, software applications, and other virtual, digital or electronic destinations that are branded or co-branded with a Client Mark.
g) “Communication” shall mean, but is not limited to: email, SMS, push notification, and in-app notification.
h) “Intellectual Property Right(s)” means any and all (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise; and (vi) rights or interest in registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.
i) “Marks” mean all trademarks, trade names, service marks and other brand identifiers used by a party or provided by one party to the other for use by such other party in connection with this Agreement.
j) “Order Form” means a written Order Form, Scope of Work, Statement of Work or similar document, to be signed by both parties, that sets forth, without limitation, a detailed description of the Platform and any Services, including (if applicable) a production schedule, specifications and all fees, expenses and payment due dates in connection therewith.
k) “Personal Information” means personally identifiable information of Client or its Affiliates, and their respective employees, agents, officers, contractors, customers (including users of the Client Properties), potential and prospective customers, suppliers, or other persons, which information may include without limitation name, address, mobile or other telephone numbers, other contact information, financial account information, date of birth, passwords, electronic serial number, device identification number, personal identification number or code, account information, or account activity information, or any other information or data that can be used for identity theft (even that which is not personally identifiable) and other sensitive information regarding such persons.
l) “Platform” means Boomtrain’s preexisting product, system, platform or service that is branded or co-branded with a Boomtrain Mark, and is specifically described in an Order Form, and that the parties agree shall be provided to Client pursuant to such Order Form.
m) “Services” means any discovery, strategy, branding, design, development implementation, hosting, consulting, monitoring, administration, maintenance, support, and/or other services that may be performed by Boomtrain for Client pursuant to an Order Form.
2. Scope of Agreement
a) From time to time during the term of this Agreement, Client may request that Boomtrain provide access to its Platform, and/or perform Services, in which case Boomtrain will prepare an Order Form. Upon signature of an Order Form by both parties, all of its terms shall be incorporated into this Agreement, and each party hereby agrees to fulfill all of its obligations set forth therein. Unless specifically indicated otherwise in an Order Form, this Agreement is non-exclusive. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall control and prevail.
b) The parties agree that any Client Affiliate may, initially or over time, execute an Order Form directly with Boomtrain; provided however, Client shall be jointly and severally liable for all payment and other obligations of Client Affiliate to Boomtrain. A Client Affiliate may also execute an Order Form covering a Client Property of which another entity is the named publisher if the Client Affiliate provides the content for the Client Property to such other entity in accordance with a copyright cooperation agreement. Upon execution of an Order Form between a Client Affiliate and Boomtrain, the references in this Agreement to “Client” shall be deemed to apply to Client Affiliate. Such Client Affiliate shall make all payments directly to Boomtrain and Boomtrain shall accept payments directly from such Client Affiliate subject to this Section 2(b).
3. Change Orders
Client may at any time by written notice to Boomtrain (e-mail acceptable), request a Material Change to a project which Boomtrain may agree to if feasible in its discretion. As used herein, a “Material Change” is a change to the scope of a project requested by Client that significantly increases Boomtrain’s work or timeline to complete the project. Within a commercially reasonable period of time after receipt of any such request, Boomtrain will provide Client with an estimate of the impact, if any, of such requested change on the payment terms, completion schedule and any other applicable provision of the Order Form. If the parties mutually agree to such changes, a written description of the agreed change (a “Change Order”) will be prepared. In the event of a conflict between the terms of a Change Order and the terms of an Order Form, the terms of the Change Order shall prevail with respect to the subject matter of the Change Order.
a) In full consideration for Boomtrain’s performance hereunder, Boomtrain shall invoice Client for the fees set forth in the Order Form (“Fees”), in accordance with the payment schedule set forth therein.
b) Client shall have thirty (30) days from its receipt of any invoice to pay fees and/or expenses. Boomtrain shall have the right, in addition to other remedies, to suspend access to the Platform and the Services as a result of any failure to make a full payment of the amount due under an invoice within 15 days of the date such payment is due and payable. Any amounts past due shall be subject to an interest rate of the lesser of one percent (1%) per month or the maximum interest allowable by applicable law. Boomtrain shall be entitled to any reasonable collection and attorney’s fees for amounts past due.
5. License and Ownership
a) Subject to the terms and conditions of this Agreement, Boomtrain hereby grants to Client a worldwide, non-exclusive, limited, revocable and non-transferable (except as provided herein) right and license to access and use the Platform, and if applicable Boomtrain Materials, during the term of the Order Form(s) solely for the purposes set forth in this Agreement.
b) Client may not resell, distribute, sublicense, reproduce, rent, share or transfer: the Platform, the Services, or Client’s right to use the Platform, to any third party or website or mobile application other than the Client Properties. Any use of the Platform on a website that is not a Client Property constitutes a material breach of this Agreement and may result in additional Fees.
c) Client shall not bundle the Services and/or the Platform with any third-party technology, and Client shall not reverse engineer, create derivative works of, or otherwise use or replicate the Platform in a manner that is not permitted in this Agreement or in violation of applicable law. Boomtrain reserves all rights in the Platform that are not expressly granted in this Agreement, including the right to modify the Platform at any time. Boomtrain is licensing and not selling the Platform.
d) Client’s continued use of the Platform after the Term of this Agreement shall cause the Term to be extended and Client shall incur additional Fees. For clarity, continued use of the Platform under this Agreement includes any transmission of data to Boomtrain’s software such as, but not limited to, any “push,” “pull,” “call,” or “request” actions to Boomtrain’s API.
e) Boomtrain and its suppliers will retain all right, title and interest in and to all Intellectual Property Rights embodied in or associated with the Boomtrain Materials, Platform and Services.
f) Subject to the terms and conditions of this Agreement, Client hereby grants to Boomtrain a worldwide, non-exclusive, non-sublicenseable, and royalty-free right and license to use the Client Materials in the form provided by Client, during the term of this Agreement solely and only to the extent necessary to perform Boomtrain’s obligations for Client as explicitly set forth in this Agreement.
g) Client will retain all right, title and interest in and to all Intellectual Property Rights embodied in or associated with the Client Materials, and all domain name(s) and URL(s) in connection with the Client Properties. As between the parties, Client will retain all right, title and interest in and to all Personal Information except for aggregated and anonymized data compiled by Boomtrain which cannot be identified by its source.
a) This Agreement shall commence on the Effective Date and shall continue for an initial Term of twelve months (12) months after the Effective Date (“Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each a “Renewal Period”) unless either party notifies the other Party in writing of its intent to terminate with at least sixty (60) days’ prior written notice. Notwithstanding the foregoing, this Agreement shall remain in effect for so long as any Order Form remains in effect. After the Initial Term, and every 12 months thereafter, the Fees shall increase automatically by 7%, if the Order Form remains in effect.
b) Either party may terminate this Agreement or any Order Form upon written notice if the other party is in material breach of this Agreement, which breach remains uncured for thirty (30) days after written notice of the breach is received by the breaching Party.
c) In the event of early termination of a Service Term by Client for any reason other than an uncured breach by Boomtrain and except as otherwise provided in Section 6(a), Client shall not be entitled to a refund and Client shall pay Boomtrain as liquidated damages and not as a penalty any Fees not prepaid and owed by Client at the time of such termination for the remainder of the term set forth in the term of the applicable Order Form.
d) Either party may terminate this Agreement or any Order Form in writing in the event that a petition under Chapter 7 of the bankruptcy code or similar proceedings is instituted against the other party and such petition is not withdrawn or dismissed within sixty (60) days.
e) Sections 1, 2(c), 5(c)-(g), 6(c), 6(e), 12, and 14-20 will survive any termination or expiration of this Agreement.
While no software is error free, Boomtrain shall employ best efforts to correct all software errors, technical failures or incompatibilities associated with the Platform, and assist Client in resolving such problems, pursuant to the Service Level Agreement, throughout the term of the Order Form. To the extent hosting is a part of any Order Form, Boomtrain shall host the Platform pursuant to the Service Level Agreement.
8. Personal Data
Subject to Section 9 and the limitations on liability set forth in Section 15(d), and without limiting Boomtrain’s other obligations under this Agreement, Boomtrain will: (i) implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Information and take such other actions as are necessary to maintain conformance with high industry standards of security and to: (a) ensure the security and confidentiality of the Personal Information; (b) protect against any anticipated or actual threats or hazards to the security or integrity of the Personal Information; and (c) prevent unauthorized access to or destruction, use, modification and disclosure of Personal Information; and (d) otherwise keep the Personal Information confidential in accordance with the terms of the Agreement. Without limitation of the above, Boomtrain will take all precautions and adopt all safety measures to avoid the foregoing risk, through: (e) proactive monitoring of known vulnerability reporting services; (f) encrypting Personal Information with industry standard encryption levels or higher at all times while in transit or stored (g) adopting industry standard encryption levels or higher technologies for the safe, secure and accurate collection, processing, storage, and distribution of all Personal Information. Client warrants that it shall not provide Boomtrain with any Personal Information. Client shall take sole responsibility for the protection of Personal Information, and full liability for the failure to protect Personal Information on Client’s systems.
9. Force Majeure Events
Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control (e.g., acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, governmental act or failure of the Internet, security breaches of either party’s electronic systems) not resulting from the actions or omissions of the party and such failure or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the party’s use of alternate sources, work-around plans or other means (collectively, “Force Majeure Events”), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses all reasonable efforts to promptly correct such failure or delay in performance. Notwithstanding the foregoing, if Boomtrain is unable to fulfill critical obligations under this Agreement (e.g., uptime of the Platform) for a continuous period of twenty-four hours; or for three (3) or more hours on three (3) or more occasions during any consecutive thirty (30) day period as a result of a continuing Force Majeure Event, Client may terminate this Agreement or the applicable Order Form without any liability except to pay the fees and expenses incurred by Client and due and owing under the applicable Order Form through the date of termination set forth in Client’s written notice of termination. The existence of a Force Majeure Event shall not extend the term of this Agreement or the applicable Order Form, except as mutually agreed by the parties.
Boomtrain agrees that while it may reference the Client in its marketing materials in name only, Boomtrain will not, without the written consent of Client in each instance: (a) use any Client Marks; or (b) issue any press release referencing Client.
11. Relationship of the Parties
Each party and its personnel are acting as independent contractors with respect to the other party and will not be treated as or considered an employee of the other party for any purpose, including but not limited to the other party’s employee benefits, unemployment taxes, Federal tax purposes, the Federal Insurance Contribution Act, or income tax withholding at the source. Nothing herein shall create, expressly or impliedly, a partnership, joint venture, agency, or other association between the parties. Each party understands and agrees that its personnel are not entitled to benefits under any employee benefit plan of the other party, even if (a) any court or other tribunal or government agency adjudicates or otherwise finds that any such personnel is a common law employee of the other party or (b) such personnel is/are deemed to be a common law employee of the other party for any other purpose. Each party represents that (i) it is in full compliance with the immigration laws of the United States and will maintain such compliance while this Agreement remains in effect; and (ii) it is authorized to engage in business and/or provide the Services in the United States. Each party is responsible for compliance with all applicable laws and governmental regulations as concerns anyone it uses to perform its obligations under this Agreement. Each party specifically acknowledges and agrees that the other party has no actual, implied or apparent authority to act as an agent or employee of such party; to enter into any contractual commitments on behalf of such party; or to incur any obligations, debt or liability for such party. Notwithstanding anything to the contrary, each party’s obligation to indemnify the other party pursuant to this Agreement includes Claims in connection with any acts or omissions of such party that are not consistent with the terms of this paragraph, including any claim or liability for taxes, penalties and/or interest that may be assessed against the other party by reason of such party and/or anyone such party uses to perform its obligations under this Agreement being deemed an employee of the other party.
a) In fulfilling its obligations under this Agreement, either party may disclose or deliver to the other party, in writing, orally, or by tangible objects (e.g., product samples), confidential and/or proprietary information concerning its business or activities and/or the business or activities of its parent, affiliates, subsidiaries, investments, clients, customers, employees, and/or third parties (a party, when disclosing such information, being “Disclosing Party”, and when receiving such information, being “Recipient”), which may include (but is not limited to) information and/or documents relating to Disclosing Party’s business plans, publications, processes, finances, editorial matters, intellectual property, personnel, product development, customers, pricing, or technology, whether disclosed before or after the date of this Agreement, and including any analyses, notes, studies, or other documents prepared by Recipient or its Representatives (as defined below) that contain or reveal such information (collectively, “Confidential Information”). Information disclosed by a party will be treated as Confidential Information only if and to the extent (i) it is marked in writing clearly and conspicuously as “confidential”, or (ii) it is identified in writing by Disclosing Party as “confidential” before, during or within ten (10) days after the presentation or communication, or (iii) by its nature it should have reasonably been known to Recipient to be confidential. Without limiting the generality of the foregoing, the terms and conditions of this Agreement (but not the existence thereof) shall constitute the Confidential Information of both parties.
b) Recipient agrees that it will use all Confidential Information solely to fulfill its obligations under this Agreement, and for no other purpose, and that it will hold all Confidential Information in confidence, taking at least such measures that it takes to protect its own confidential information of similar nature (but in no event less than a commercially reasonable standard of care), and higher measures if appropriate or required hereby. To that end, Recipient will keep all Confidential Information in a secure place; take commercially reasonable measures to prevent unauthorized access, use, reproduction or disclosure thereof; and limit access to the Confidential Information only to those Representatives necessary (i) in order for Recipient to carry out Recipient’s obligations under this Agreement or (ii) to provide related services (e.g., an audit). Recipient will not alter or remove any confidentiality or proprietary rights marking on any document or object provided by Disclosing Party. In addition, Recipient will not disclose or otherwise reveal the Confidential Information, or any portion, summary or description thereof, to any third party whatsoever (except to Representatives as permitted herein). Recipient will notify Disclosing Party immediately in the event it becomes aware that any of the Confidential Information is lost, stolen or inadvertently disclosed to others.
c) “Representatives” shall mean directors, officers, managers, affiliates, employees, independent contractors, agents, and/or advisors (including attorneys, accountants, financial advisors, and consultants). Recipient represents that any of its Representatives who are provided Disclosing Party’s Confidential Information by Recipient will be bound by confidentiality obligations at least as protective of the Confidential Information as those contained herein. Any act or omission by any such person that is contrary to the terms and conditions of this Agreement will also be considered a breach hereof by Recipient.
d) At any time upon request by Disclosing Party, Recipient will return to Disclosing Party or destroy (and, upon Disclosing Party’s request, certify in writing to Disclosing Party such destruction) (which action to take being at the election of the Recipient) all originals and copies of all documents containing Confidential Information provided to it by Disclosing Party, and will not retain any copies of such documents or information except such copies as may be automatically retained by computer systems’ caching and copies retained for specific legal purposes.
e) Confidential Information will not include any information that (i) is or subsequently becomes publicly available or generally known in the relevant industry without Recipient’s breach of any obligation owed to Disclosing Party; (ii) was known to Recipient or its Representatives prior to disclosure of such information by Disclosing Party; (iii) is received from a third party who is not known by Recipient to be subject to an obligation of confidentiality to Disclosing Party with respect to such information; (iv) can be shown by documentation to have been independently developed by the Recipient without use of any Confidential Information; or (v) is obtained in newsgathering by a reporter, writer, editor, or researcher who either works for or is providing services to Client or its Affiliates, provided it is not obtained from Client’s personnel who are involved in operations under this Agreement and who received the Confidential Information in connection therewith.
f) If Recipient is requested or required to produce any Confidential Information pursuant to subpoena, investigative demand, court order, or other legal process, Recipient will take reasonable steps (unless prohibited) to give Disclosing Party sufficient prior notice to enable Disclosing Party to attempt to avoid, limit, or receive protective treatment over such disclosure (if Disclosing Party so decides), will use reasonable efforts to cooperate with Disclosing Party in such attempt (at Disclosing Party’s expense with respect to out-of-pocket costs) and, if disclosure is required, will furnish only such portion of the Confidential Information as it has been advised by counsel it is legally compelled to disclose.
g) Recipient’s obligations hereunder will survive the expiration or earlier termination of this Agreement for a period of three (3) years. Any employees or other persons, including independent contractors, who are to be provided Disclosing Party’s Confidential Information by Recipient, will be bound by the terms and conditions of this Agreement as if they were a party hereto. A breach by any such person will also be considered a breach by Recipient.
13. Warranties of Boomtrain
Boomtrain represents and warrants that: (a) it has all necessary rights, consents, permits, and authority to execute this Agreement and perform its obligations and to grant the rights and/or licenses granted hereunder to Client; (b) the Services will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (c) the Platform and Services will operate in conformance with the relevant terms of this Agreement, including without limitation, the specifications set forth in the Order Form; (d) it is the owner of or otherwise has the right to use and distribute all materials and methodologies used in connection with performing the Services and providing the Platform including without limitation the Boomtrain Materials, and that the Platform will not violate or infringe any copyright or trademark rights and will not knowingly violate or knowingly infringe upon any patent rights, Intellectual Property Rights, or any rights of privacy or publicity; (e) it will comply with all applicable federal, state and local laws and governmental regulations in the performance of its obligations hereunder; (f) it will not attempt to access, destroy, disable, repossess, alter or tamper with any programming, software or data associated with the Client Properties, whether remotely via modem, or by access to Client’s personal property, premises or otherwise; EXCEPT AS PROVIDED UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT, BOOMTRAIN SHALL PROVIDE THE PLATFORM AND THE SERVICES AS-IS AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PLATFORM AND SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
14. Warranties of Client
Client represents and warrants that: (a) it has all necessary rights and authority to execute this Agreement and perform its obligations and to grant the rights and/or licenses granted hereunder to Boomtrain; (b) the Client Materials, as provided by Client, will not violate or infringe any copyright or trademark rights and will not knowingly violate or knowingly infringe upon any patent rights, Intellectual Property Rights, or any rights of privacy or publicity; (c) it will comply with all applicable federal, state and local laws and governmental regulations in the performance of its obligations hereunder; (d) that Client Materials are not: defamatory, libelous, or otherwise illegal; and (e) that Client Materials have not been obtained in violation of any third party privacy rights. EXCEPT AS PROVIDED UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLIENT SHALL PROVIDE THE CLIENT MATERIALS AS-IS AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CLIENT MATERIALS, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
a) Boomtrain shall indemnify, defend and release Client, its Affiliates, agents, officers, directors, and employees from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and expert costs) to the extent arising out of any act or omission by Boomtrain, including any third-party claim alleging that the Services or the Platform (unless otherwise modified by Client or a third party) infringe or violate any third-party right, including without limitation, any copyright, patent, trademark or other intellectual property right.
b) Client shall indemnify, defend and release Boomtrain, its licensors, Affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and expert costs) to the extent arising out of Client’s acts or omissions, including without limitation as a result of Client’s breach of this Agreement or any third-party claim alleging defamation, libel or that Client has violated such third party’s privacy or other rights, arising out of the Client’s acts or omissions, or the Client Materials.
c) A party seeking indemnification (“Indemnified Party”) will give prompt written notice of any applicable claim to the party from whom indemnification is sought (“Indemnifying Party”); provided, however, that failure to give such notice will not relieve Indemnifying Party of any liability hereunder (except to the extent Indemnifying Party has suffered actual prejudice by such failure). The Indemnified Party shall provide reasonable assistance to defend or settle an applicable Claim at Indemnifying Party’s expense. The parties agree that Indemnifying Party shall have primary control of the defense and settlement of such Claim provided that Indemnified Party shall have the right to participate in the defense and settlement negotiations of such Claim through its own counsel at its own expense, and provided further that Indemnifying Party shall not agree to any settlement or compromise that imposes any obligation or liability on Indemnified Party without such party’s prior written consent.
d) EXCEPT FOR (I) EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS; AND (III) A PARTY’S LIABILITY ARISING OUT OF ITS INDEMNIFICATION OBLIGATIONS IN SECTION 15(a), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAYABLE TO BOOMTRAIN BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, BOOMTRAIN’S AGGREGATE LIABILITY UNDER ANY CIRCUMSTANCES SHALL NOT EXCEED THE AMOUNT OF $1,000,000.
Neither Party may assign this Agreement to any third-party except upon prior written consent, not to be unreasonably withheld. Notwithstanding the foregoing, a Party may assign this Agreement without such consent to (i) a parent or subsidiary of such Party, (ii) an acquirer of all or substantially all of the capital stock or assets of such Party, or (iii) in connection with a reorganization or merger. Any purported assignment in violation of this Section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
Routine communications under this Agreement may be made by e-mail with confirmation of receipt. Any legal notices under this Agreement, including without limitation notices regarding termination, breach, indemnification, or other non-routine matters, shall be effective only if delivered in writing and in compliance with this section. Notice shall be deemed to be given (a) as of the date delivered if delivered personally; (b) one (1) day after deposit with a nationally recognized overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested; in all cases to the respective address for the party set forth in the first paragraph of this Agreement as well as to the contact person set forth in the applicable Order Form.
This Agreement constitutes the entire agreement and understanding between the parties, supersedes prior agreements between the parties, whether oral or written, with respect to the subject matter hereof, and may not be altered except in a document signed by the party to be bound thereby. This Agreement can be executed in two or more counterparts, including PDF and facsimile counterparts, with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument. No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on a party unless expressly agreed to in writing by that party. This Agreement has been entered into solely between Client and Boomtrain, and no third-party beneficiaries are created hereby. If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms. No waiver shall be deemed to have been made by either party unless it is expressed in writing and signed by the waiving party. The failure of either party to insist in any one or more instances upon strict performance of any of the terms of provisions of this Agreement, or to exercise any option or election herein contained, shall not be construed as a waiver or relinquishment for the future of such terms, provisions, option or election, and no waiver by either party of any one or more of its rights or remedies under this Agreement shall be deemed to be a waiver of any prior or subsequent rights or remedies hereunder or at law. The section headings in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of the Agreement. This Agreement will be governed by the laws of the state of California applicable to contracts to be wholly performed therein.
Except with respect for any collection action due to Client’s failure to timely pay any outstanding amounts owed to Boomtrain or in connection with obtaining any equitable or injunctive relief, the parties agree that individual, final and binding arbitration is the exclusive means for resolving the claims outlined in this Agreement. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. This arbitration agreement is a waiver of all rights the parties may have to a civil court action on any dispute over the material terms of this Agreement. Only an arbitrator, not judge or jury, may decide the dispute. The arbitrator has the authority to award any type of relief that could otherwise be awarded by a judge or jury. The venue for the arbitration shall be San Francisco County, California, and the parties agree to equally share the cost of the arbitration.