Master Service Agreement
Welcome to Boom.
This Master Services Agreement and any applicable proposal, pricing schedule or service order (each an “Order”) (collectively the “Agreement”) is a legally binding agreement by and between Boom Pay, Inc. (“Company”, “us” or “we”), and the entity or person (“Client”, “you” or “your”) executing an applicable Order. This Agreement describes the terms and conditions, and governs access to and use of Company’s proprietary platform (the “Platform”).
The “Effective Date” of this Agreement is the date on which the Company and the Client execute an Order.
The Company may modify this Agreement from time to time in accordance with Section 10.6 (Modifications) below. All exhibits or other documents attached hereto are hereby incorporated herein and made a part of this Agreement for all purposes as if fully set forth herein.
1. PLATFORM SERVICES AND MARKETING.
1.1 Platform Services. The Platform is comprised of (a) Company’s Partner Portal (“Portal”) whereby partners can login to enroll/invite, monitor, and manage Client Customers, (b) software development kits (SDKs) and application programming interfaces (APIs), and (c) Company Services, as further described in this Agreement and accompanying Order (“Platform Services”). The Platform may provide access to, integrated display of, and delivery of certain consumer data (“Customer Data”), including Customer Data which can identify a natural person (“Personal Data”). Customer Data, Personal Data, Reporting Data, Consumer Reports and any other data, reports or information made available to Client through the Platform are referred to collectively as “Data.” “Consumer” means a natural person who is the subject of Personal Data or Reporting Data processed through the Platform, including any Client Customer who is a natural person. “Consumer Report” has the meaning set forth in the FCRA. “Report” means a Consumer Report or other screening or verification report made available to Client through the Platform.
1.1.1 Order. The Platform Services offered and made available to Client shall be set forth in an applicable Order.
1.1.2 Client. For the purposes of this Agreement, “Client” means any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity executing an Order or otherwise accessing or using the Platform, and its employees, representatives, consultants, contractors, partners, agents or affiliates who are authorized by such Client to access and use the Platform, each of which whom shall agree to be bound by this Agreement.
1.1.3 Client Customers. For the purpose of this Agreement, “Client Customers” means any consumers, such as renters, or end user customers, such as landlords, who access and/or are introduced to the Platform through a Client Channel. Client Customers may include consumers that have a financial account with Client.
1.1.4 Client Channel. For the purposes of this Agreement, “Client Channel” shall mean the point at which a consumer may be introduced to and/or access the Platform (e.g. Client website, Client app, email distribution to Client’s customers, rental portal).
1.2 Company’s Role. The Company makes available, both directly and through its Clients, Platform Services which enable (1) consumers to create a Company account in order to report their rental payment history, participate in rental screening, and other services; (2) businesses that manage or rent properties to obtain and manage renter applications, facilitate renter history reporting, and other services; and (3) consumer account providers to verify and share renter information through the Company. COMPANY IS NOT A PARTY TO ANY RENTAL TRANSACTIONS.
COMPANY DOES NOT OWN OR MANAGE THE PROPERTIES USING THE PLATFORM SERVICES, DOES NOT MAKE ELIGIBILITY DECISIONS OR TAKE ADVERSE ACTION, AND DOES NOT ENTER INTO RENTAL AGREEMENTS FOR THOSE PROPERTIES. AS A RESULT, COMPANY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INFORMATION, THE CONTENTS OF ANY DOCUMENTS, OR FOR ANY OTHER INTERACTIONS BY, BETWEEN, OR AMONG USERS OR CLIENTS OF ANY KIND THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO ANY DECISION FOR ELIGIBILITY. IN THE EVENT THAT YOU HAVE A DISPUTE, YOU RELEASE COMPANY FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
1.3 License. Subject to Client's compliance with the terms and conditions of this Agreement, and as may be provided in an Order, the Company hereby grants Client during the applicable term of an Order, the non-exclusive, non-transferable, and non-sublicensable right and license to access and use the Platform in accordance with the terms and conditions set forth herein and in the applicable Order, and specifically: (i) to utilize the Platform as set forth in an applicable Order; and/or (ii) to allow Client Customers to access, view and use the applicable Services on or through the Platform as set forth in an applicable Order. Except as provided herein, Client may not disclose to or provide any third party access to, use of, or rights in or to the Platform, except as third parties may access or use the Platform in relation to the Client’s ordinary course of business as set forth in an applicable Order and then only for the sole benefit of Client. Except for the license granted hereunder, as between the parties, Company retains all right, title and interest in and to the Platform.
1.4 Client Obligations.
1.4.1 Log-Ins. Client acknowledges it is responsible for maintaining the confidentiality of any log-in credentials provided or created to access an account on the Platform. In the event Client shares log-in credentials with another person, Client acknowledges and accepts full responsibility for any acts taken on the Platform by the party to whom Client provided the log-in credentials. Client agrees to immediately notify Company of any unauthorized use of log-in credentials or other breach of security on the Platform.
1.4.2 Client-Provided Personal Data. Where Client provides to Company certain Personal Data, including account and identifying information relating to Client Customers, Client represents and warrants that it has undertaken commercially reasonable account identification procedures sufficient to form a reasonable belief that account information and Personal Data provided by or through Client to Company is accurately attributed to the person identified. In the event that Client learns of potential fraud or inaccuracy in account information and Personal Data provided by or through Client to Company, Client commits to promptly inform Company and assist at Company’s direction in resolution of any inaccuracy.
1.5 Restrictions. Except as otherwise explicitly provided herein or in an applicable Order, or as may be expressly permitted by Applicable Laws, Client will not, and will not permit or authorize any third party to: (i) modify, and/or make derivative works of, disassemble, reverse compile and/or reverse engineer any part of the Platform, or reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of the Platform or any other compiled software provided or made available by Company hereunder; (ii) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, sell, distribute, assign, rent, lease, or transfer the Platform, any portion thereof, or any of Client’s rights thereto; (iii) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the Platform (including images, text, page layout, and/or form); (iv) use any metatags and/or other “hidden text” using Company’s name and/or trademarks; (v) use and/or access the Platform in order to create any service, software, platform, documentation, or data that is competitive with, substantially similar, or confusingly similar to any aspect of the Platform; (vi) copy, reproduce, distribute, republish, download, display, post and/or transmit any part of the Platform in any form and/or by any means; (vii) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in the Platform or any materials provided or made available by Company hereunder, or fail to reproduce any such notice or legend on any copy made of any such materials; (viii) take any action that materially interrupts or interferes with, or that would reasonably be expected to materially interrupt or interfere with, the Platform, Company’s business operations or other customers’ use or enjoyment of the Platform or Platform Services; (ix) run any form of auto-responder and/or “spam” on or through the Platform or use the Platform to otherwise send “spam” to any third party; (x) use the Platform in any unlawful way or for any unlawful purpose and/or to violate any federal, state, or international law; (xxi circumvent or disable any security or technological features or measures of the Platform; (xii) misrepresent your identity, impersonate any other person, or provide false or misleading information about your identity or circumstances; (xiii) transmit any unlawful, infringing, misleading, deceptive, threatening, libelous, defamatory, plagiarized, fraudulent, harassing, obscene, discriminatory, inflammatory, pornographic or profane material, spam or use the Platform to access, store, distribute or transmit any viruses, worms, trojan horses, or other similar things or devices that may prevent, impair or otherwise negatively affect the operation of any software, hardware, network, program or data, or transmit any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or would otherwise violate applicable law; (xiv) use any “open source” or “copyleft” software in a manner that would require Company to disclose the source code of the Platform to any third party or offer the Platform at no charge; (xv) access the Platform for any purpose which is not authorized under this Agreement; (xvi) permit a Competitor or anyone acting on behalf of, at the direction of, or for the benefit of any Competitor, to access or use the Platform; and/or (xvii) permit any third party, including any employee, contractor, vendor, agent, or affiliate, to access or use the Platform through Client’s account or credentials unless Client has (a) taken commercially reasonable measures to verify that such third party is not a Competitor and will not violate this section or any representations and warranties in this Agreement, and (b) for any third-party vendor or contractor whose access is ongoing or material, identified such vendor or contractor to Company in writing in advance of any such access and provided assurances reasonably satisfactory to Company that such vendor or contractor is not a Competitor and will comply with this section. With respect to violations of this section, Client shall be responsible for, and the acts and omissions of any such third party shall be deemed acts and omissions of Client.
1.5.1 Notwithstanding anything to the contrary herein, Company may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 1.3 if Client breaches the restrictions in this Section or creates other security or legal concerns.
1.5.2 “Competitor” means (i) any entity that develops, markets, licenses, or offers products or services that compete with, or are substantially similar to, the Platform or any material feature thereof, including without limitation rent reporting, tenant screening, rental underwriting, and resident credit reporting products; (ii) any parent, subsidiary, or affiliate of any entity described in clause (i); and (iii) any other entity that Company reasonably determines to be a competitor of Company.
1.6 Systems. Client shall ensure that its network and systems comply with the relevant specifications provided by Company and shall provide Company with information as may be reasonably required by Company in order to render access to the Platform. Client is responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for it to access and/or use the Platform, other than as necessary for Company to host and provide the Platform. The Client will determine the access controls for the users and will be responsible for its activity on or through the Platform, whether or not authorized, including compliance with this Agreement. Client agrees to prevent unauthorized access to, and/or use of the Platform and notify Company immediately of any unauthorized use of Client’s account and/or any other known breach of security of or to the Platform in connection with Client’s access to or use thereof. Company will, to the extent permitted by law, notify Client without undue delay, and in any event within twenty-four (24) hours, after becoming aware of any breach of security relating to the Platform that affects Client or Client Customers.
1.7 Maintenance and Security. The Company will use its best efforts to provide standard maintenance for the Platform during the term of this Agreement, which will include enhancements, "bug fixes" and other modifications as may be identified by the Company. Company shall bear no obligation to run, provide or support legacy versions of the Platform. The Company may make additional modifications or releases to the Platform and the underlying source code as the Company may determine in its sole and absolute discretion. Notwithstanding the foregoing, to the extent any such modifications or releases are reasonably expected to reduce, inhibit, impair, or otherwise adversely affect the functionality or performance of the Platform, the Company will use commercially reasonable efforts to notify Client of such changes with as much notice as is reasonably practicable. The Company will, at all times, implement and maintain reasonable technical, administrative, physical, and organizational information security measures.
1.8 Third Party Service Providers. The Platform and Platform Services may contain code, content, features, functionality, components and certain products and services (collectively the “Features”) that are provided by third-parties. In addition to this Agreement, any such third-party Features may be governed by additional terms and conditions provided by suppliers of said third-party Features which shall be set forth herein this Agreement including its Addenda, an applicable Order, Product Addendum, or as provided to you prior to the time of such use.
Your execution of an Order or use or continued use of such Features after review of such additional terms shall constitute acceptance of such terms. Any Features shall be provided “AS IS” without warranty of any kind by Company. Company assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Features.
1.9 Suspension. Client is responsible for maintaining the security of its account and shall use commercially reasonable efforts to govern and control activities that occur with respect to its use of the Platform and by any users. Notwithstanding anything herein to the contrary, Company reserves the right, without liability to the Client, to disable or suspend the Client’s access to the Platform in the event (i) of any material breach of this Agreement; (ii) Client or its users use of the Platform (a) disrupts or poses a security risk to the Platform or any Company customer, (b) is reasonably believed it may harm Company’s systems, or the systems of any provider of any third-party services, or (c) may subject Company or any third-party to liability; (iii) Client or its users are using the Platform for fraudulent or illegal activities; (iv) Client’s use of the Platform materially violates any Applicable Laws, specifically including without limitation, the Telephone Consumer Protection Act and Fair Credit Reporting Act; (v) Company has reason to suspect data quality issues associated with a Client account, until those issues are resolved to Company’s satisfaction; or (vi) Company’s continued provision of any of the Platform Services is prohibited by Applicable Laws or regulation. Company shall provide Client with reasonable notice and opportunity to cure any of the foregoing events, unless in Company’s reasonable discretion, Company determines that such notice and cure period would cause imminent harm to the Company, the Platform or any third party.
2. PRIVACY & DATA USE.
2.1 Privacy Policies. Company acknowledges the importance of privacy and commits to maintaining a Privacy Policy in compliance with applicable laws. Our Privacy Policy outlines how we collect, use, retain, disclose, and safeguard the Personal Data provided by end users. Users can refer to Boom's Privacy Policy for comprehensive information on data practices. This Privacy Policy is found on the Company's website at https://www.boompay.app/legal.
2.2 Personal Data. Company will process Personal Data of both Clients and Consumers for the following purposes. Clients and Client Customers are responsible for understanding and complying with the laws governing the use, storage, and disclosure of Personal Data (“Data Protection Laws”). Client represents and warrants it has obtained all legally required authorizations from and provided compliant disclosures to Client Customers prior to requesting any Personal Data from Company.
2.2.1 Data Processing. Company will process Personal Data acting on behalf of Client where the Client determines the means and purposes of processing the Personal Data.
The purposes of Company’s processing of Personal Data in such capacity will be to: process or administer a transaction requested by a consumer, including facilitating the reporting of consumer’s payment data and providing resident screening reports subject to the Fair Credit Reporting Act; service, monitor, prevent and detect fraudulent behavior on the Platform; implement, maintain and perform internal processes that enable Company to provide its Platform, including relationship management, billing and invoicing; comply with FCRA regulations and other applicable laws; and analyze and develop Company’s Platform. Where authorized by a Consumer or otherwise permitted under applicable law, Company may also process Personal Data for its own purposes.
Such purposes will be to develop, market, deliver, and provide support services for products of interest to Consumers and Clients using the Platform as well as for internal analytics. Company will share Personal Data as necessary to effectuate the foregoing purposes.
2.2.2 Data Providers. Client understands and agrees that the Data offered through the Platform and/or used in conjunction with the Products is collected and compiled from various third-party data and service provider sources (each a “Data Provider”). As such, Data is not being provided by the Company and is solely provided by and through such Data Providers. You may be required to agree to additional terms and conditions that apply to and govern the use of certain Data. Any Data or Products provided by third parties, including Data Providers shall be provided “AS IS” without warranty of any kind by Company. Company assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third-party Data and Products. Client acknowledges and agrees that Company may provide Consumer Reports from one or more Consumer Reporting Agencies. Company may discontinue, upgrade or change the production, support, delivery and maintenance of any Services if Company is unable to acquire data, services or other products on commercially reasonable terms, or if Company, or its third-party licensors, develops an upgraded version or otherwise no longer generally provides such Services to its Clients. The Services to be provided pursuant to this Agreement shall not be deemed to constitute a bulk sale of data.
Company shall comply with laws and regulations applicable to its provision of the Services under this Agreement. Client represents and warrants it has obtained all legally required authorizations and disclosures from Client Customers prior to requesting any Report.
2.2.3 Privacy. Wherever Client collects personally identifiable information from its website users and/or users of the Platform in conjunction with the ordering of any Data through the Platform, Client agrees to clearly and conspicuously post a link to a Privacy Policy on each of its websites where it is collecting such information. Such privacy policy shall comply in all material respects with all Federal Trade Commission guidelines and any other laws, rules, and regulations with respect to personally identifiable information and online privacy and online privacy of minors, including all Applicable Laws, in each case, applicable to Client’s collection and use of personally identifiable information.
2.2.4 Changes. Company shall have the right to modify or discontinue access to or delivery of any or all of the Data, if it believes in good faith that it cannot provide the Data without violating Applicable Laws or due to the requirements of any contract with a Data Provider. When and where possible, Company shall provide Client with reasonable notice prior to such modification or discontinuance and use reasonable efforts to provide substitute data.
2.2.5 Rights. The parties agree that each party to this Agreement serves as an independent data controller for Customer Data collected hereunder, with authority to determine the purposes and means of processing for their respective business purposes.
Company may process Customer Data for credit reporting and other lawful business purposes as disclosed to and consented to by consumers at the time of collection. Client retains data controller rights in Customer Data for property management and related business purposes. Each party shall process data in compliance with applicable Data Protection Laws and consumer consents.
2.2.5.1 Notwithstanding the rights granted in this Section, Client agrees to process Personal Data in accordance with applicable Data Protection Laws. Client represents and warrants that it has obtained all necessary rights, consents, and authorizations to provide Customer Data to Company and to permit the processing, use, and sharing described in this Section, including providing appropriate privacy notices to data subjects regarding the processing described in this Section.
2.2.5.2 This Section shall survive termination or expiration of this Agreement. In the event of any conflict between this Section and any other data processing agreement, addendum, or privacy policy, this Section shall control to the extent of such conflict. If any provision of this Section is deemed invalid or unenforceable, the remaining provisions shall remain in full force and effect.
2.2.5.3 Data Privacy. While Client remains responsible for responding to data subject inquiries, Company will reasonably cooperate and assist Client with meeting data privacy law compliance obligations and responding to data subject inquiries at no additional cost, including responding to verifiable consumer requests, taking into account the nature of Company's processing, the applicability of the Fair Credit Reporting Act to Company activities, and the information available to Company. Company may use subcontractors to provide the Services.
2.2.6 Compliance. Both parties will comply with all applicable requirements of state Data Protection Laws when processing Personal Data. Company warrants that it has no reason to believe any Data Protection Law requirements or restrictions prevent it from providing any of the Platform Services or otherwise performing under this Agreement.
Company agrees to promptly notify Client of any changes to applicable law that may adversely affect its performance under the Agreement. Client shall comply with and will not violate any applicable federal, state, local and international laws and regulations applicable to Client, or Client’s customers where Client manages properties for one or more owners, in connection with its procurement and use of the Consumer Reports furnished by Company, including but not limited to the FCRA, the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721 et seq., the Gramm-Leach-Bliley Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., the European General Data Protection Regulation (EU 2016/679) or any local ordinances (collectively, “Related Law”). By executing this Agreement, Client certifies that it has reviewed the platform and these terms and conditions and has made a determination that this workflow does not prohibit or frustrate Client’s compliance with Related Law. By providing the online platform and tools contained therein, Company is not representing that the platform or tools contained therein will meet the needs related to the Client’s use or that such use is necessarily in compliance with Related Law.
2.2.7 Consumer Authorization. If Client requests a Report where state law requires a disclosure be provided to consumer, or that the consumer authorize a Report in writing in order for Company to furnish a Report, Client certifies: (A) that it is ordering a report for the permissible purpose certified above and for no other purpose; (B) that the information from the report will not be used in violation of any applicable federal or state law or regulation; and (C) that the report will not be ordered by the Client prior to the time allowed under any applicable federal, state or local restriction
2.3 Eligibility to Use the Platform. Clients may access and use the Services only in accordance with a completed Order. Any unauthorized or illegal use of the Platform Services is strictly prohibited. While the Site may be accessed from countries other than the United States, Company does not provide Services outside of the United States and the Platform is not meant to be used outside of the United States. You represent and warrant that You will not export or re-export the Services into any U.S. embargoed countries or to anyone on the U.S. Department of Commerce Denied Persons List or Entity List or the U.S. Treasury Department’s list of Specially Designated Nationals.
3. FEES; PAYMENTS.
3.1 Fees. In consideration of the access to and use of the Platform and Platform Services, Client agrees to pay Company the fees set forth in the applicable Order (“Fees”). All undisputed Fees, expenses and taxes due hereunder will be paid in U.S. dollars and shall be remitted to the Company within thirty (30) days of receipt of an invoice. All Fees due and payable by Client to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. If a Client fails to pay the full amount of the charges detailed in any invoice within thirty (30) days after the due date, then the undisputed and unpaid amounts of such invoice shall accrue interest at a rate of 1.5% per month or, if less, the maximum rate permitted by law. Accounts suspended for any reason are subject to a reconnection fee, and each returned check or invalid payment may be assessed a service charge. Client authorizes Company and its agents to contact Client with respect to amounts past due by any electronic or telephonic means at the number and electronic addresses provided. Client shall pay Company all costs of collection of past due amounts owed to Company hereunder, including without limitation, attorneys’ fees, collection agency fees and court costs. Client is responsible for all usage under its user log-ins.
3.2 Price Adjustments. Fees set forth in an Order will not increase during the first twelve (12) months following the effective date of that Order. On each anniversary of that date, Fees under the Order will increase by five percent (5%), applied to the Fees then in effect. Company will give Client written notice of the adjusted Fees at least sixty (60) days before they take effect; if Company gives notice later, the adjustment takes effect sixty (60) days after notice is given instead, and that delay does not change the timing of later adjustments. Fees will not increase under this Section more than once in any twelve (12) month period, and this Section does not apply to any minimum commitment set forth in an Order. Taxes and Data Provider surcharges are handled separately under Section 3.6. An Order may specify a different percentage or a different date, or provide that no adjustment applies, and that term will control for that Order.
3.3 Payment. Client agrees to accept an electronic invoice. Unless otherwise stated in the applicable Order, client shall pay Company for the Fees due hereunder via ACH through linked bank method in the Company’s Portal.
3.4 Disputed Amounts. Client shall pay all invoiced amounts by the due date on the invoice. If Client disputes any charge or amount on any invoice or statement, Client shall notify Company and the parties will work in good faith to resolve the dispute. If Company determines any amount was charged in error, it will correct the invoice (if such determination is made prior to the due date) or it will refund the amount (if such determination is made after the due date). If the dispute cannot be resolved through good-faith discussions between the parties, the parties shall diligently proceed to resolve such disputed amount through arbitration, as set forth in Section 10.11, within forty-five (45) days from the date of the invoice. An amount will be considered disputed in good faith if (i) Client delivers a written statement to Company on or before the due date of the invoice, describing in detail the basis of the dispute and the amount of the dispute or amount being withheld by Client, (ii) such written statement represents that the amount in dispute has been determined in good faith, and (iii) all other amounts due from Client that are not in dispute have been paid in accordance with the terms of this Agreement.
3.5 Access. Company may, without liability to Client, disable the password, account, and/or access to all or part of the Platform if any undisputed Fees are not paid when due under this Agreement or an applicable Order, provided however, that Company shall provide Client with fifteen (15) days prior notice to cure any non-payment of undisputed Fees. In the event the amounts due remain unpaid, the Company shall not be obligated to provide access to or use of the Platform until such undisputed Fees are paid in full.
3.6 Fees and Taxes. Fees paid to Boom for services listed in Platform Service Order pricing table are exclusive of sales, use, excise, ad valorem, personal property, and other taxes, as well as any Company surcharges arising out of compliance with applicable regulations, other such government-imposed obligations, and Company’s third-party vendor obligations (including, but not limited to, court surcharges and credit bureau surcharges), which taxes and surcharges may change from time to time. When Company has the legal obligation to collect such taxes, the appropriate amount shall be added to Company’s invoice and paid by Client, unless Client provides Company with a valid tax exemption certificate prior to issuance of the invoice. Such certificate must be in a form authorized by the appropriate taxing authority. Company will as a matter of course pass-through surcharges imposed by Data Providers in the invoice paid by Client.
3.7 Audit. During the term of this Agreement, Company may audit Client for purposes of ensuring Client’s compliance with this Agreement. Company may choose the auditor in its sole discretion. Any such audit shall take place during regular business hours and shall not unreasonably disrupt Client’s operations. Client shall provide access to such personnel, properties, files, and records (both physical and electronic) as may be reasonably required by Company and/or its designee for that purpose. Company or its designee may, during the source of such examination, make copies or extracts of Client’s books and records relating to Client’s compliance with this Agreement. Company shall treat all information reviewed during an audit as confidential. If the audit indicates there is a breach in Client’s compliance with this Agreement: (i) Company may immediately terminate this Agreement and pursue legal remedies, (ii) Company may suspend providing Platform Services to Client until the breach has been fully cured to Company’s satisfaction and Company has received satisfactory assurances that such breach will not reoccur and Client will fully perform its obligations under this Agreement, and (iii) Client shall pay for the cost of such audit. Additionally, in the event Company find that Client has underpaid any fees due to Company, Client shall, within 30 days of discovery of such underpayment, remit to Company the full amount of such underpayment. If Client does not cooperate with Company’s request to audit for compliance, Client shall be deemed to be in breach of this Agreement, for which Company may immediately terminate this Agreement.
4. TERM AND TERMINATION.
4.1 Term. This Agreement shall commence on the Effective Date and unless otherwise specified in an Order, shall continue for a period of one (1) year (the “Initial Term”), and thereafter automatically renew for additional one (1) year terms (each a “Renewal Term”), unless either party delivers written notice at least thirty (30) days prior to the end of the Initial Term or a Renewal Term of such party's intent to terminate this Agreement (the Initial Term and all such Renewal Terms, collectively the “Term). Termination shall not relieve either party of obligations incurred prior thereto.
4.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party (i) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business, (ii) if the other party breaches or fails to perform in any material respect any of its material obligations under this Agreement, and does not cure such breach or failure within seven (7) days after receipt of written notice of the breach or failure, or (iii) if a party has a reasonable belief that continuance of the delivery, receipt or use of the Platform Services will result in an imminent violation of an Applicable Law. Notwithstanding the foregoing, in the event that a change in Applicable Laws results in Company no longer being able to offer the Platform or Service(s) in a commercially reasonable manner as determined by Company, Company shall have the right to terminate this Agreement without penalty upon thirty (30) days’ notice. Any account that remains inactive for a period of twelve months may be deemed a termination by Client, and Company may terminate the account. Client acknowledges that pricing is based on a minimum term. If the Agreement is terminated, for some or all covered accounts, due to Client’s breach or for convenience of Client, then Client shall pay Company the full amount of any outstanding minimum Fees, annual Fees or the like for the remainder of the then-current term for terminated Services.
4.3 Obligations After Termination. Upon termination, Client will pay all outstanding undisputed fees, charges and expenses owed through the date of termination, or any period thereafter incurred due to then current enrolled Client Customers’ continued use of the Platform. Upon termination of this Agreement, Client shall destroy all copies of the Platform Services in Client’s possession.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Applicable Law. Each party represents and warrants that it will comply with all local, state and federal laws, rules and regulations, as applicable in performance of this Agreement, including, without limitation, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule Act, 16 C.F.R. pt. 310, the Federal Trade Commission Act, the Children’s Online Privacy Protection Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310) and applicable state Do Not Call List requirements, and the Federal Communications Act. Additionally, Company represents and warrants that it will comply with the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, (U.S.C. §1681m(a)), and the Dodd-Frank Wall Street Reform and Consumer Protection Act including but not limited to Section 1031 and 1036 (collectively, “Applicable Laws”).
5.2 Party Representations. Each party represents, warrants to the other Party that as of the Effective Date: (i) it has all requisite corporate or other applicable organizational power to enter into, consummate the transactions contemplated by and perform its obligations under this Agreement; (ii) the execution of this Agreement, if by a Client representative, is made by a representative who has knowledge of the facts certified and whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Client; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby violate or will violate (1) the provisions of any other agreement to which such party is a party or by which it is bound, or (2) any law, rule or regulation applicable to it or any of its assets.
5.3 Client Representations.
5.3.1 Client represents and warrants that (a) it shall use the Personal Data and related Platform Services only for an intended and permissible purpose under this Agreement and/or an applicable Order; (b) it shall use and provide access to the Personal Data and related Platform Services only in accordance with Applicable Laws, Applicable Product Terms, Applicable Data Terms, and Data Protection Laws, and when and where required, upon the written instructions and consent of the consumers to whom such Platform Services relate; (c) as applicable, it shall request and use the Personal Data strictly in accordance with the FCRA, understanding and acknowledging that THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18 OR IMPRISONED NOT MORE THAN TWO YEARS OR BOTH; and (d) it shall maintain commercially reasonable procedures designed to ensure that such Personal Data and Platform Services are not obtained by any unauthorized person and/or entity.
5.3.1.1 Vermont Regulations. Client certifies that it will order reports relating to Vermont residents that are consumer reports as defined by the Vermont Fair Credit Reporting Act (“VFCRA”), only after Client has received prior consumer consent in accordance with VFCRA Section 2480e and applicable Vermont Rules.
5.3.1.2 California Regulations. Client certifies that any orders it submits comply with all applicable provisions of the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code §§ 1785.1 et seq. and the Investigative Consumer Reporting Agencies Act, Cal. Civ. Code §§ 1786.1 et seq. Section 1785.14(a) of the California Civil Code imposes special requirements with respect to transactions in which a “retail seller” (as defined in Section 1802.3 of the California Civil Code) intends to issue credit to a California resident who appears in person on the basis of an application for credit submitted in person (“point of sale transactions”). Client certifies that these requirements do not apply to it because (a) Client is not a “retail seller” (as defined in Section 1802.3 of the California Civil Code), and (b) Client does not issue credit to California residents who appear in person on the basis of applications for credit submitted in person. Client further certifies that it will notify Company in writing 30 days prior to becoming a retail seller or engaging in point of sale transactions with respect to California residents. Section 1786.12 (e) requires that Client and its end users must certify that they have made required disclosures to the consumer when the report is requested and will comply with Section 1786.16(b) in providing a form to obtain a report copy and in the taking of adverse action, if any.
5.3.2 Client agrees to furnish to Company certain Data from its records about its customers with whom it has established accounts (the “Reporting Data”). Client will furnish and update such Reporting Data no less frequently than at monthly intervals, unless otherwise agreed in writing, and shall provide such Reporting Data in the form and manner required by Company and communicated to Client from time to time during the Term of the applicable Order. Client hereby certifies that all Reporting Data furnished to Company shall accurate, complete, and submitted in good faith, and shall be promptly updated upon discovering any inaccuracy or omission. Client obligations include but are not limited to the following:
5.3.2.1 Client must promptly respond to inquiries from Company in accordance with any response deadline provided to Client by Company from time to time and/or as required by Applicable Laws. Specifically, Client agrees to submit Reporting Data in an acceptable format to Company via secure file transfer on at least a monthly basis and to provide investigation findings to Company as reasonably requested.
5.3.2.2 Where Company is the furnisher of record under Section 5.5.1, Company will conduct dispute investigations, and Client will cooperate with and promptly assist Company in each such investigation, including by providing ledger records, lease documentation and investigation findings within the time Company reasonably specifies in order to meet the deadlines imposed by Applicable Laws. Where Client is the furnisher of record under Section 5.5.2, Client is responsible for conducting dispute investigations in accordance with Applicable Laws, and Company will provide the dispute management assistance set forth in the applicable Order.
5.3.2.3 Upon termination of the Reporting Services, Company will cease transmitting Reporting Data to the Credit Bureaus. Where Client is the furnisher of record under Section 5.5.2, Company will no longer administer consumer disputes on Client's behalf, and Client remains responsible for its furnisher obligations under Applicable Laws with respect to the Reporting Data, which may include obtaining and maintaining its own e-OSCAR account and paying the associated fees. Where Company is the furnisher of record under Section 5.5.1, Company will continue to handle consumer disputes referred by the Credit Bureaus in respect of Reporting Data previously transmitted by Company, and Client will continue to provide the cooperation described in Section 5.3.2.2 with respect to such disputes. This Section 5.3.2.3 survives termination or expiration of this Agreement or any Order, as do Client’s obligations under Section 5.3.2.2 to the extent necessary to give effect to this Section, in each case for a period of five (5) years following the date Company ceases transmitting Reporting Data on Client’s behalf.
5.3.3 If Client elects to obtain updated or additional screening reports beyond those initially ordered, any such re-runs will be performed at Client’s request and expense in accordance with Company’s then-current pricing. Company has no obligation to re-run reports absent a new order. Unless indicated otherwise in writing, screening services are charged on a per order basis.
5.3.4 Client represents and warrants that: (a) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the Personal Data, Platform Services or Company systems; (b) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Personal Data, Platform Services or Company systems; and (c) in the event of any security breach or unauthorized access to any Personal Data, Platform Services or Company systems, Client will promptly investigate such breach and notify Company without undue delay, and in any event within twenty-four (24) hours, and, unless otherwise informed by Company, take all corrective action necessary to remedy such breach, and perform such remediation (with all consumer notifications and credit monitoring to be undertaken by Company), with the costs of such notifications, credit monitoring and remediation allocated in accordance with Section 5.3.5.
5.3.5 In the event of a breach caused by Client’s systems, personnel, or failure to comply with security obligations, Client shall reimburse Company for all reasonable costs associated with breach mitigation, including credit monitoring, notice, and remediation efforts.
5.3.6 Client represents and warrants that Client has implemented, and will maintain throughout the Term, commercially reasonable policies and procedures to prevent (i) unauthorized access to or use of the Platform through Client’s account or credentials, (ii) access or use by any Competitor, and (iii) any violation of Section 1.5 by any person accessing the Platform through Client’s account. Any breach of the foregoing, or any violation of Section 1.5 by any person accessing the Platform through Client’s account, shall constitute a breach of Client’s representations and warranties under this Agreement.
5.4 Company Representations.
5.4.1 Company agrees to convert Reporting Data provided by Client into the appropriate format required by Experian®, TransUnion®, and Equifax® (the “Credit Bureaus”), as applicable. Company shall provide Client a file template for guidance.
5.4.1.1 Company agrees to submit the applicable file to each credit bureau as identified within the applicable Order and where Company or Client, as applicable under Section 5.5, has been approved by such credit bureau to report such Reporting Data. For any credit bureau requiring Client to submit its Reporting Data information directly, Company shall convert the Reporting Data only and provide the converted file to Client. Client is responsible for submitting the converted file to the applicable bureau.
5.4.1.2 Company shall bear no liability or otherwise be responsible for delays in the provision of Reporting Services or any portion thereof caused by Client's failure to timely provide Reporting Data, information, or responses, requested by Company. Client agrees to promptly cooperate with Company as necessary and appropriate and reasonably requested by Company.
5.4.1.3 Company agrees to process each file provided by Client in a timely manner.
5.5 Furnisher Status. The parties acknowledge that the allocation of furnisher responsibilities under the Fair Credit Reporting Act depends on the credentialing model of each Credit Bureau, and agree as follows. The furnisher of record is determined separately for each Credit Bureau, and may differ among the Credit Bureaus to which Reporting Data is transmitted under an Order. Where the allocation for a Credit Bureau is not established under Section 5.5.1 or Section 5.5.2, the applicable Order will identify the furnisher of record for that Credit Bureau, and Company will not transmit Reporting Data to that Credit Bureau until the allocation is so identified.
5.5.1 Where Company is credentialed with a Credit Bureau as the furnisher of the Reporting Data, Company acts as the furnisher of record to that Credit Bureau and is responsible for its obligations as a furnisher under Section 623 of the Fair Credit Reporting Act and Regulation V with respect to the transmission of the Reporting Data to that Credit Bureau and the handling of consumer disputes referred by that Credit Bureau.
5.5.2 Where a Credit Bureau treats Client as the furnisher of record—whether Client is credentialed directly by that Credit Bureau, or is boarded with that Credit Bureau in its own name as a data contributor through Company acting as an approved data aggregator—Client is the furnisher of record to that Credit Bureau and is responsible for its obligations as a furnisher under Section 623 of the Fair Credit Reporting Act and Regulation V with respect to the Reporting Data transmitted to that Credit Bureau.
Company acts as Client's aggregator and service provider for the preparation and transmission of the Reporting Data and, as set forth in the applicable Order, the administration of consumer disputes on Client's behalf.
5.5.3 In each case, and regardless of which party is the furnisher of record, Client is responsible for the accuracy, completeness and timeliness of the Reporting Data it supplies to Company, for obtaining and maintaining all Client Customer enrollment authorizations, disclosures and consents required by Applicable Laws, and for promptly notifying Company of any inaccuracy or omission in the Reporting Data.
5.5.4 Company will identify to Client, upon written request, the furnisher of record for each Credit Bureau to which Reporting Data is transmitted under the applicable Order. Company will notify Client promptly if that allocation changes. Where the change would make Client the furnisher of record to a Credit Bureau to which it was not previously the furnisher of record, Company will give Client not less than thirty (30) days’ prior written notice, and Client may, by written notice to Company within that period, direct Company to cease transmitting Reporting Data to that Credit Bureau, without penalty and without affecting the remainder of the Order.
5.5.5 Credentialing Information. Where a Credit Bureau requires that Client be credentialed in connection with the Reporting Services, Client will, upon Company’s request, provide the information and documentation necessary to complete and maintain that credentialing, which may include verification of Client’s legal name, any assumed or DBA name, business address, business or professional license or federal employer identification number, organizational documents, the identity of Client’s principals and their relationship to the business, and the nature of Client’s business activities. Client represents and warrants that all information provided under this Section is accurate and complete, and will notify Company promptly of any change to it. Client authorizes Company to verify that information, to perform the diligence the applicable Credit Bureau requires, to retain records of that diligence for the period the Credit Bureau requires, and to disclose that information and those records to the Credit Bureau upon its request. If Client fails to provide requested credentialing information, or if Client cannot be or ceases to be credentialed by a Credit Bureau, Company may suspend transmission of Reporting Data to that Credit Bureau until the matter is resolved, without liability to Client.
6. CONFIDENTIALITY; NON-DISCLOSURE.
6.1 Confidential Information. “Confidential Information” means any non-public data, information and other materials regarding the software, services, customer list, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or on behalf of a party to the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, any software, performance data, benchmark results, and technical information relating thereto, pricing information and the terms and conditions of this Agreement (but not its existence) shall be deemed Confidential Information. The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
6.2 Disclosure. Each party shall at all times keep and maintain the confidentiality of all Confidential Information, and shall not use or reproduce Confidential Information except for the purposes provided herein and shall not disclose any Confidential Information to any third party (other than to its legal, accounting or other professional representatives on as needed basis, provided such party has an obligation to keep the same confidential). Each party shall inform its employees, marketers, agents and contractors of the nondisclosure requirements set forth in this Agreement and shall obtain their respective commitments to abide by such requirements. Each party hereto shall be responsible for the actions of any of its employees, marketer, agents, affiliates or contractors that would constitute a violation of such party's rights under this section if such violation had been committed directly by such party. Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent the disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that to the extent not prohibited by Applicable Laws,the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and at Disclosing Party’s expense, makes a reasonable effort to obtain, or to assist the Disclosing Party to obtain, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued. Each party shall notify the other upon the discovery of any loss or unauthorized disclosure of the Confidential Information of the other party, within thirty (30) days of such discovery, including a brief description of the Confidential Information disclosed.
6.3 Exclusions. Confidential Information shall not include information that: (i) is or becomes generally known or available to the public at large other than as a result of a breach by the Receiving Party of any obligation to the Disclosing Party; (ii) was known to the Receiving Party free of any obligation of confidence prior to disclosure by the Disclosing Party; (iii) is disclosed to the Receiving Party on a non-confidential basis by a third-party who did not owe an obligation of confidence to the Disclosing Party and does not reasonably appear to have obtained the information improperly or from an unauthorized source; or (iv) is developed by the Receiving Party independently of and without reference to any part of the Confidential Information. Confidential Information shall not be deemed to be in the public domain or generally known or available to the public merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public.
7. DISCLAIMERS AND OTHER LIMITATIONS.
7.1 No Warranty. Except as expressly set forth in this Agreement and any applicable order, the Platform and Platform Services are provided on an “as is” and “as available” basis, and the Company makes no representation or warranty, express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose. No warranties will be created by course of dealing, course of performance, or trade usage, including, without limitation, that the Platform will operate error free, without interruption, will achieve any intended result, and the company expressly disclaims all such representations and warranties. Company exercises no control over and expressly disclaims any liability arising out of or based upon Client’s use of the Platform and Platform Services.
7.1.1.1 Client acknowledges and agrees that the criminal, eviction, credit, or other records provided through the Platform originate from third-party data providers and are subject to their own turnaround times and availability. Company exercises no control over the timeliness, completeness, or accuracy of such data and is not responsible for delays caused by third-party data providers. Client acknowledges that when Client runs a query, Company may automatically search across multiple third-party data providers, including at the county, state, and nation-wide levels, but delays in one or more data providers returning results may result in a delay by Company in returning full search results.
7.1.1.2 Company shall not be responsible for any marketing content provided by Client to consumers, including the process, method, or formula used to select advertising recipients. Client acknowledges that Company does not make decisions with respect to Client’s marketing or advertising to consumers and agrees to indemnify Company for any claims resulting from such activities, including but not limited to any claim under any fair housing law or ordinance, the Credit Repair Organizations Act. Client agrees that, at Company’s discretion, Company has the option but not the obligation to review any marketing materials Client intends to publish using the Platform. Client shall provide Company thirty (30) days advance notice to review such marketing materials before publication on the Platform.
7.1.1.3 Company does not make tenant eligibility or credit decisions. Client is solely responsible for evaluating all information received, making eligibility determinations, and for complying with all applicable laws regarding adverse action it takes in relation to consumers.
7.1.1.4 All consumer data and reports are provided ‘AS IS’ without warranty of any kind. Company disclaims all liability for errors or omissions contained in such data.
7.1.1.5 Requirements for Statewide/National Criminal Registry. Company does not guarantee, warrant or assume any responsibility for the completeness, accuracy, or validity of the information contained in the statewide or national criminal repository.
7.2 Limitation of Liability. Except for claims relating to data privacy or protection, the parties’ indemnification obligations under this Section 8 of this Agreement and their confidentiality obligations under Section 6 of this Agreement, in no event will either party be liable to the other party for any indirect, special, consequential, punitive or incidental damages, whether based on breach of contract, tort (including negligence), or any other legal theory, even if advised of the possibility of such damages. In no event shall either party be liable to the other for any damages in excess of the fees paid to the Company for the three months prior to the date the claim for damages arose. The existence of multiple claims does not enlarge this limit.
8. INDEMNIFICATION
8.1 Client Indemnification. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY, ITS AFFILIATES AND AGENTS, AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS AND EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, LOSSES, DAMAGES, COSTS (INCLUDING REASONABLE ATTORNEY'S FEES, COURT COSTS, AND COSTS ASSOCIATED WITH COMPANY RESPONDING TO A SUBPOENA), SUITS, JUDGMENTS, REGULATORY INQUIRIES, GOVERNMENT ORDER, EXPENSES AND DEMANDS (COLLECTIVELY, "CLAIMS") TO THE EXTENT ARISING OUT OF, FROM, OR RELATED TO (I) THE BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT HEREIN, (II) THE USE OF OR PROVISION OF THE PLATFORM, DATA OR PRODUCTS OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT OR IN VIOLATION OF APPLICABLE LAW, (III) ANY GROSSLY NEGLIGENT ACT OR OMISSION OR WILLFUL MISCONDUCT IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, (IV) ANY USE OF THE PLATFORM OR PLATFORM SERVICES THAT INFRINGES UPON ANY PATENT, COPYRIGHT, OR TRADE SECRET OF A THIRD PARTY INTELLECTUAL PROPERTY, (V) ANY CLAIMS ARISING FROM INCOMPLETE, INACCURATE, MISLEADING, OR IMPROPERLY FURNISHED REPORTING DATA; OR (VI) ANY ACTS OF THE INDEMNIFYING PARTY OUTSIDE THE SCOPE OF THIS AGREEMENT. THESE INDEMNIFICATION OBLIGATIONS SHALL SURVIVE THE TERMINATION OF THE APPLICABLE ORDER.
8.2 Company Indemnification. COMPANY SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS CLIENT, ITS AFFILIATES AND AGENTS, AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS TO THE EXTENT ARISING OUT OF, FROM, OR RELATED TO ANY USE OF THE PLATFORM OR PLATFORM SERVICES THAT INFRINGES UPON ANY PATENT, COPYRIGHT, OR TRADE SECRET OF A THIRD PARTY’S INTELLECTUAL PROPERTY (COLLECTIVELY, “IP CLAIMS”). HOWEVER, COMPANY SHALL HAVE NO LIABILITY OR OBLIGATION HEREUNDER WITH RESPECT TO ANY IP CLAIMS ARISING DIRECTLY OR INDIRECTLY FROM (I) THE USE OF THE PLATFORM OR PLATFORM SERVICES IN COMBINATION WITH PRODUCTS, SERVICES, SOFTWARE, DATA, OR SYSTEMS NOT PROVIDED BY COMPANY, (II) ANY MODIFICATION OR UNAUTHORIZED USE OF THE PLATFORM OR PLATFORM SERVICES OR ANY BREACH OF THIS AGREEMENT BY CLIENT, (III) INSTRUCTIONS OR DIRECTIONS PROVIDED BY OR ON BEHALF OF CLIENT, OR (IV) THE FAILURE TO USE UPDATES OR CORRECTIONS PROVIDED BY COMPANY. IN RESPONSE TO AN ACTUAL OR POTENTIAL IP CLAIM UNDER THIS SECTION, IF REQUIRED BY SETTLEMENT OR INJUNCTION OR AS COMPANY DETERMINES NECESSARY TO AVOID MATERIAL LIABILITY, COMPANY MAY AT ITS OPTION (I) PROCURE THE RIGHTS FOR CLIENT’S CONTINUED USE OF THE PLATFORM OR PLATFORM SERVICES, AS APPLICABLE, (II) REPLACE OR MODIFY THE ALLEGEDLY INFRINGING PORTION OF COMPANY’S PLATFORM OR PLATFORM SERVICES TO AVOID INFRINGEMENT WITHOUT REDUCING THE OVERALL FUNCTIONALITY OF THE PLATFORM OR PLATFORM SERVICES, OR (III) TERMINATE THE IMPACTED ORDER, OR PORTION THEREOF, AND REFUND TO CLIENT ANY PRE-PAID, UNUSED FEES FOR THE TERMINATED PORTION OF THE ORDER. THIS INDEMNITY WILL BE CLIENT’S ONLY REMEDY UNDER THIS AGREEMENT FOR ANY INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION BY COMPANY OF A THIRD PARTY’S INTELLECTUAL PROPERTY OR OTHER RIGHTS.
8.3 Indemnification Procedures. THE INDEMNIFYING PARTY RESERVES THE RIGHT, AT ITS SOLE COST, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY THE INDEMNIFIED PARTY, IN WHICH EVENT THE INDEMNIFIED PARTY WILL REASONABLY ASSIST AND COOPERATE WITH THE INDEMNIFYING PARTY IN ASSERTING ANY AVAILABLE DEFENSES. THE INDEMNIFIED PARTY AGREES NOT TO SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFYING PARTY. THE INDEMNIFIED PARTY MAY HAVE COUNSEL OF THEIR OWN CHOICE AT THEIR OWN COSTS.
9. PROPRIETARY RIGHTS.
9.1 Intellectual Property. As used herein, “Intellectual Property” means all patents, designs, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works (including software programs and related documentation), trade secrets, know-how, design rights, database rights, and all other intellectual property and proprietary information, and all modifications, compilations, and derivative works thereof.
9.2 Ownership. The Company is the sole and exclusive owner of all right, title and, interest, including Intellectual Property rights, in and to the Platform, Platform Services, and underlying algorithms and source code, and all derivatives of the foregoing pursuant to this Agreement, including any feedback or suggestions provided by Client or users with respect to the Platform.
Client acknowledges that the Platform and Platform Services and any related source code/algorithms constitute: (i) an original compilation protected by US copyright laws; and/or (ii) trade secrets of Company. Client acknowledges and agrees that the Platform Services are licensed to Client, and not sold. Company reserves all right, title, and interest, including all Intellectual Property rights, in and to the Platform Services, subject only to the license rights expressly granted to Client pursuant to the terms of this Agreement. As between Company and Client, Client shall have the sole and exclusive right, title and interest in and to any Intellectual Property in the Client Channel and Client owned marketing materials. All developments, improvements, customizations, and derivative works created by or on behalf of the Company in connection with this Agreement, including any based on Client feedback, shall be the sole and exclusive property of the Company. Client shall not use any data outputs or reporting to attempt to replicate or reverse engineer the Platform's algorithms, data models, or methods of analysis.
Each of the Company and Client acknowledge that the other owns and/or licenses or may hereinafter develop certain Intellectual Property used in the performance of this Agreement. Each of the Company and Client specifically disclaim any ownership or other right with respect to the Intellectual Property owned and/or licensed and/or developed by the other party, except as otherwise provided herein. Except as expressly provided herein, neither party grants or transfers to the other, nor does the other party obtain, any right, title, claim, license or other interest in or to any of the Intellectual Property (including information, consumer information database, systems, forms manuals or other proprietary information) utilized or provided by the other party.
9.3 Use of Name and Logo. Company and Client each hereby grants to the other the right to use the other’s name, trade names, trademarks and/or logos in marketing, sales, and public relations materials and other communications solely to identify the other as a customer, client or service provider. Either party shall have the right to revoke permission of such use of the name, trademark and logo at any time, upon reasonable written notice to the other party. Client agrees that Company may publicly identify Client as a customer and may use anonymized performance data or client testimonials in case studies or marketing materials with Client’s prior written consent, not to be unreasonably withheld. Other than as expressly stated herein, neither Company nor Client shall use the other party's names, trademarks or logos without the prior written permission of the other party.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement constitutes the full and complete understanding and agreement of Client and the Company and supersedes all prior negotiations, understandings and agreements pertaining to the subject matter hereof.
10.2 Assignment. Company may assign its rights or obligations under this Agreement at any time without notice to Client. Client may not assign, transfer or sublicense to anyone any rights granted under this Agreement without prior written approval by Company. Any attempted assignment that is prohibited under this section shall be null and void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.3 Survival. The rights and obligations of the parties set forth in Section 6 CONFIDENTIALITY; NON-DISCLOSURE, Section 7 DISCLAIMERS AND OTHER LIMITATIONS, Section 8 INDEMNIFICATION, and Section 9 PROPRIETARY RIGHTS, and any right or obligation of the parties which by its express terms or nature and context is intended to survive termination or expiration of this Agreement or any Order, shall survive such termination or expiration.
10.4 Equitable Remedies. Breaches of a party’s obligations related to the protection of confidential information, protection of intellectual property rights, or compliance with Applicable Laws may cause such other party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, each party acknowledges and agrees that, in addition to any and all remedies that the non-breaching party may have at law or otherwise with respect to such a breach, the non-breaching party will be entitled to seek injunction or other appropriate equitable relief without posting bond and without being obligated to prove actual damage or harm.
10.5 Relationship. The Company and Client are independent contractors with respect to one another under this Agreement. This Agreement shall not be deemed to establish any agency, joint venture or partnership relationship.Each party shall be responsible for the payment of all employee compensation, benefits and employment and other taxes pertaining to its employees and business.Neither party shall have the authority to legally bind the other to any contract, proposal or other commitment or to incur any debt or create any liability on behalf of the other.
10.6 Modifications. From time to time, Company may modify the terms of this Agreement.
Company will use commercially reasonable efforts to notify Client of the modifications and the effective date of such modifications through communications via Client’s account, email, or other means. Client must accept the modifications to continue accessing or using the Platform. If a Client objects to the modifications, unless otherwise agreed by Company, its exclusive remedy is to cease any and all access and use of the Platform and terminate this Agreement which shall not be deemed a breach, provided that Client shall be entitled to a reasonable wind-down period if allowable without undue or unreasonable harm to Company or the Platform. Client may be required to click to accept or otherwise agree to the modified terms in order to continue accessing or using the Platform, and in any event continued access or use of the Platform after the modified version of these terms goes into effect will constitute Client’s acceptance of such modified version.
10.7 Notices. Any notice, request, designation or other communication required or permitted to be given hereunder shall be in writing and may be given by personal delivery regular mail, overnight mail, or email, and shall be deemed sufficiently given if delivered or addressed to parties at the respective addresses set forth below, or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when (i) delivered personally; (ii) three (3) business days following deposit in the mail, postage prepaid; or (ii) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.
If to Company:
Name: Boom Pay, Inc.
Attn: Legal Department
Address: 1401 Lavaca St, #1036
City, State, Zip: Austin, TX 78701
E-mail: hello@boompay.app
If to Client:
The e-mail address in the applicable Order.
10.8 Waiver. No delay or omission or failure to exercise any right or remedy provided for herein will be deemed to be a future waiver thereof and any single or partial exercise of any such right or remedy, power or privilege will not preclude any later exercise thereof.
10.9 Severability. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, then such provision will be fully severable and this Agreement will be construed and enforced as if such invalid, illegal or unenforceable provision were not a part hereof.
10.10 Headings. The headings of sections herein are for convenience only and will not be deemed to affect in any way the scope, intent or meaning of the provisions to which they refer.
10.11 Governing Law and Venue.
10.11.1 This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without resort to the conflict of law principles thereof.
10.11.2 The parties irrevocably agree that any action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state courts of the State of Delaware located in New Castle County, or in the United States District Court for the District of Delaware.
10.12 Non-Exclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.13 Force Majeure. Neither party will be responsible for any failure or delay in its performance or service under this Agreement (except for any payment obligations for services already rendered) due to causes beyond its reasonable control, which may include, by way of illustration but not limitation, network failures, acts of civil or military authorities, pandemic, fires, interruptions in third party telecommunications, Internet equipment, servers or other third party services, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
Notwithstanding the foregoing, each party affected by a force majeure shall use its commercially reasonable efforts to perform during the period of such event or circumstance, and in any event shall promptly perform upon the cessation of such event or circumstance. Promptly upon becoming aware of force majeure causing a delay in performance or preventing performance of any obligations imposed by this Agreement (and the termination of such delay), the party being delayed or prevented from performing shall give written notice to the other party giving the details of the event, including particulars of the actual event, and if applicable, estimated continuing effects of such force majeure event on the obligations of the party. If such an event of force majeure continues for thirty (30) days, then either party may terminate this Agreement with no penalties or damages. Company shall not be liable for delays or failures caused by court closures, governmental actions, or other events beyond its control affecting data sources.
10.14 Conflict. To the extent there is any inconsistency or conflict between this Agreement and an Order, exhibit or attachment, such Order, exhibit or attachment shall control.
10.15 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An electronic delivery of the signature page hereto shall be deemed an original for all purposes hereof.
10.16 Electronic Signature. This Agreement may be executed through the use of electronic signature, which each Party acknowledges is a lawful means of obtaining signatures. Each Party agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement. Any signature transmitted by facsimile or e-mail (in .pdf, .tif, .jpeg, or a similar format), or a photocopy of such transmission, is deemed to constitute the original signature of such Party to this Agreement.