Service Agreement

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THIS SERVICE AGREEMENT (otherwise known and described as “Terms of Service” or “Terms”) is made by and among Boingnet Inc. (“Boingnet”) and the registered user who has used our websites (http://www.boingnet.com and http://v2.boingnet.com) or signed up for a free trial or full account and clicked their acceptance of this agreement (“Client”, “User”, “You”). Boingnet has developed certain Internet based software services called the Boingnet Platform (“Service”) and/or Professional Services (“PS”) and/or Boingnet Content (all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Service and/or our websites), which The Client desires to use to market its products and services to its customers.

The Boingnet Platform is a web based, self-service, template driven software platform that is used to create marketing campaigns. Boingnet customers create, deploy and manage marketing campaigns within the Boingnet Platform.

By using the Boingnet.com web site, the Service and/or PS from Boingnet, whether for internal use or to deliver applications and services to your End Users you are agreeing to be bound by the following terms and conditions. You also represent and warrant that you meet all of the requirements for use of Boingnet, and that you won’t use Boingnet in a way that violates any laws or regulations. If you are using the Service or receiving Professional Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.  Boingnet may refuse service, close accounts of any users and change eligibility requirements at any time.

Boingnet reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes.

Violation of any of the terms below may result in the termination of your Account. You agree to use the Service at your own risk.

Account Terms

  1. You must be 18 years or older to use this Service.
  2. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
  3. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
  4. You agree to the Terms and all aspects of the Service Agreement.
  5. You are responsible for maintaining the security of your account and password. Boingnet cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You will notify us immediately of any unauthorized use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords.
  6. You are responsible for all Content created, uploaded posted and activity that occurs under your account (even when Content is posted by others who have accounts under your account). You are the sole owner of all content held in your account, Boingnet is only a tool used to manage, display and use the content.
  7. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). You represent and warrant that your use of Boingnet will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements. If you’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant that in creating your Contact List, sending messages or building or hosting landing pages or microsites via Boingnet, and collecting information as a result of running campaigns, you:

a)     Will clearly describe in writing how you plan to use any data collected, including for your use of Boingnet. You’ll get express consent to transfer data to Boingnet as part of this process, and you’ll otherwise comply with whatever privacy policy you have posted.

b)     Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you’re sending any form of email through Boingnet.

c)     Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection laws and regulations. You have the necessary permission to allow Boingnet to receive and process data and send communications to that individual on your behalf.

d)     Agree to indemnify and hold us harmless from any losses, including attorney fees, that result from your breach of any part of these warranties.

e)     No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

Term

The term begins when you sign up for Boingnet and continues as long as you use the Service. Clicking the button and entering your username means that you’ve officially “signed” the Service Agreement. If you sign up for Boingnet on behalf of a company or other entity, you represent and warrant that you have the authority to accept this Service Agreement on their behalf.

Changes

We may change any of the Terms by posting revised Terms of Use on our Website and/or by sending an email to the last email address you gave us. Unless you terminate your account within ten (10) days, the new Terms will be effective immediately and apply to any continued or new use of Boingnet. We may change the Website, the Service, or any features of the Service at any time.

Account Disputes

We don’t know the inner workings of your organization or the nature of your personal relationships, and we don’t arbitrate disputes over who owns an account. You won’t request access to or information about an account that’s not yours and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the content of the in that account, and if multiple people or entities are identified in the content, then we’ll rely on the contact information listed for that account.

Service and PS Pricing  

  1. Boingnet reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
  2. Prices of all Services and Professional Services, including but not limited to monthly or other time based subscription plan fees to the Service, are subject to change at any time.
  3. Boingnet shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
  4. Client is liable for payment of agreed upon pricing for the use of the platform and any services delivered to the Client. Boingnet will suspend or cancel service if payment for the Service and/or PS is not promptly paid.

Privacy Policy

We may use and disclose your information according to our Privacy Policy. Our Privacy Policy will be treated as a part of these Terms.

Right to Review Campaigns

We may view, copy, and internally distribute content from your campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts or to improve the Service or provide Professional Services. We use these Tools to find Clients who violate these Terms or laws and to help identify best practices.

Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Boingnet user, we want to hear about it. Please report it to our abuse team. If you think anyone has posted material that violates any copyrights, then you may notify us according to our Copyright Policy.

Bandwidth Abuse/Throttling

You may only use our bandwidth for your Boingnet messages, landing pages and microsites. We provide image hosting only for your campaigns, so you may not host images on our servers for anything other than your campaigns (like a non Boingnet website, service or message). We may throttle your sending or connection through our API at our discretion.

Email, SMS/Text, Social Media and other Messaging (Collectively “Messages” or “Messaging Services”) Terms

You will comply with the Boingnet Usage Terms & Conditions (BUT&C) while using Messaging Services. Boingnet will not have any liability with regards to the Messaging Services and any action resulting from your use of the Messaging Services.

API Terms

The Client may access their Boingnet Platform account data via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses Boingnet Platform, is bound by the terms of this agreement plus the following specific terms:

  1. You expressly understand and agree that Boingnet shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Boingnet has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
  2. Abuse or excessively frequent requests to Boingnet Platform via the API may result in the temporary or permanent suspension of your account’s access to the API. Boingnet, in its sole discretion, will determine abuse or excessive usage of the API. Boingnet will make a reasonable attempt via email to warn the account owner prior to suspension.
  3. Boingnet reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
  4. If you are accessing or using the Service through a third party service or web site (“Third Party Service”), you will abide by these Terms and Conditions of Use regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in these Terms and Conditions of Use.

Payment, Refunds, Upgrading and Downgrading Terms

  1. Boingnet retains the right to change the terms of free accounts at any time include usage restrictions, or to completely remove the free service all together.
  2. The Service is billed in advance on a monthly basis or on a Pay As You Go basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
  3. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
  4. For any upgrade or downgrade in plan level, you will automatically be charged the new rate on your next billing cycle.

Cancellation and Termination

Client is solely responsible for properly canceling the Service. Cancellation can be done in the Service using the Cancellation feature of the “Change Plan” page of the Service. An email with a confirmation response from Boingnet or a phone call with the confirmation in writing or email can also be used to cancel Client Service. All Professional Services rendered must be paid in full prior to cancellation. If not, Boingnet reserves the right to pursue all means to collecting for services rendered.

  1. All of your Content will be immediately deleted from the Service upon cancellation. This information cannot be recovered once your account is cancelled.
  2. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.
  3. There will be no refunds associated with partial month usage of the Platform for monthly subscribers. Annual subscribers will be issued a refund for the unused months, minus any discounts associated with prepayment of the annual service.
  4. Boingnet, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other Boingnet service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Boingnet reserves the right to refuse service to anyone for any reason at any time.

Copyright and Content Ownership

This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service and Professional Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Boingnet Content, the Service, or the Professional Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks cannot be used without our prior written permission.

  1. All content created, uploaded, posted or displayed on the Service must comply with U.S. copyright, trademark and intellectual property law.  Boingnet shall be held harmless for all content created, uploaded, posted or displayed.
  2. We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours.
  3. Boingnet does not pre-screen Content, but Boingnet and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
  4. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of Boingnet without express written permission from Boingnet.

Publicity

Client grants Boingnet the right to add Client’s name and company logo to its customer list and website.  Client agrees to work with Boingnet on joint marketing ventures to highlight successes via cases studies, white papers, testimonials, videos, social media, etc. Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.

Third-Party Sites and Products

“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Service or Professional Services. These products and services include non-Boingnet applications available from our integrations products page, partner directory, links made available through the Service and/or our websites.

“Third-Party Sites” means third-party websites linked from within the Service, including Messaging Services.

Domain Purchasing Service

Boingnet has created an interface into Amazon Web Services to facilitate domain name purchasing from within the Service. You agree to use the Domain Purchasing Service only in compliance with terms of use specified in the Boingnet Domain Name Registration Agreement. We do not control the content, messages or information found in the Domain Purchasing Service. We will not have any liability with regards to the Domain Purchasing Service and any actions resulting from your use of the Domain Purchasing Service.

Confidentiality

In the performance of this Agreement, each party may have access to confidential, proprietary or trade secret information owned or provided by the other party relating to software computer programs, object code, source code, marketing plans, business plans, financial information, specifications, flow charts and other data (“Confidential Information”). All Confidential Information supplied by one party to another pursuant to this Agreement shall remain the exclusive property of the disclosing party. The receiving party shall use such Confidential Information only for the purposes of this Agreement and shall not copy, disclose, convey or transfer any of the Confidential Information or any part thereof to any third party, except that The Client may sublicense the Services as set forth in this Agreement. Neither party shall have any obligation with respect to Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the a receiving party or rightly received by a receiving party from a third party; or (iii) is independently developed by or a the receiving party. Upon notice to the the other party, the either party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

Use of the Service and Prohibited and Unauthorized Use of the Service

  • You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Service; (iii) attempt to gain unauthorized access to the Service; (iv) access the Service other than through our interface, API or other interfaces designed by Boingnet or built with Boingnet PS; or (v) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by contacting us at http:www.boingnet.com/contact/.

General Conditions

  1. Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis.
  2. You understand that Boingnet uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
  3. We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
  4. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Boingnet customer, employee, member, or officer will result in immediate account termination.
  5. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  6. You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.
  7. You must not transmit any worms or viruses or any code of a destructive nature.
  8. Boingnet does not warrant that (i) the service will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
  9. You expressly understand and agree that Boingnet shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Boingnet has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service.
  10. The failure of Boingnet to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Boingnet and govern your use of the Service, superseding any prior agreements between you and Boingnet (including, but not limited to, any prior versions of the Terms of Service). If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including without limitation the warranty disclaimers and liability limitations set forth within, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
  11. This Agreement shall be treated as though it were executed and performed in Massachusetts, and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without regard to conflict of law principles). Any cause of action by you with respect to the Site (and/or any information, Documents, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in this agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
  12. Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Boingnet’s prior written consent, which will not be unreasonably withheld.
  13. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
  14. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
  15. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
  16. Client will indemnify, defend and hold Boingnet harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Boingnet (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Boingnet to the extent that such Action is based upon or arises out of (a) Client’s use of the Service; (b) Client’s noncompliance with or breach of this Agreement, (c) Client’s use of Third-Party Products;  (d) any violation of copyright,  trademark or any type of intellectual property claim made based on the words, images, designs, marketing materials, descriptions or any other use of the Service by Client, or, (e) the unauthorized use of the Service by any other person using Client’s User information. Client agrees that it will promptly pay all legal fees associated with any involvement of Boingnet of any third party claim of any kind resulting from Client’s use of the Service or PS. Boingnet shall use commercially reasonable efforts to: notify Client in writing within thirty (30) days of Boingnet’s becoming aware of any such claim; give Client sole control of the defense or settlement of such a claim (provided that Client may not settle any such claim unless the settlement unconditionally releases Boingnet of all liability); and provide Client (at Client’s expense) with any and all information and assistance reasonably requested by Client to handle the defense or settlement of the claim. Client shall not accept any settlement that (i) imposes an obligation on Boingnet; (ii) requires Boingnet to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Boingnet without Boingnet’s prior written consent.
  17. Disclaimer of Warranties. BOINGNET AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, BOINGNET CONTENT, OR THE PROFESSIONAL SERVICES FOR ANY PURPOSE. THE BOINGNET CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SUBSCRIPTION SERVICE, CONSULTING SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. BOINGNET AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE, THE BOINGNET CONTENT, AND THE PROFESSIONAL SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BOINGNET IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
  18. No Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE OR THE PROFESSIONAL SERVICES, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICE, ANY BOINGNET CONTENT, OR FOR THE PROFESSIONAL SERVICES OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY IN ALL CASES.
  19. Limitation of Liability. EXCEPT FOR CLIENT’S LIABILITY FOR PAYMENT OF FEES FOR THE SERVICE AND CONSULTING SERVICES AND CLIENT’S LIABILITY ARISING FROM ITS INDEMNITY OBLIGATIONS UNDER SECTION 15 (INDEMNIFICATION), IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
  20. Third Party Products. BOINGNET DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CLIENT. BOINGNET’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND BOINGNET’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION.
  21. CLIENT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CLIENT UNDERSTANDS AND AGREES THAT ABSENT CLIENT’S AGREEMENT TO THIS LIMITATION OF LIABILITY, BOINGNET WOULD NOT PROVIDE THE SERVICE TO CLIENT.
  22. Notice to U.S. Government End Users – The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:

a)     only as Commercial Items,

b)     with the same rights as all other end users, and

c)     according to the Terms

d)     Published and Unpublished rights are reserved under the copyright laws of the United States. Manufacturer is Boingnet Inc., 55 Accord Park Drive, Rockland, MA 02370.

20. Export. Customer agrees to comply with all applicable export laws. The software that supports the Services (the “Software”) is subject to United States export controls. None of the Software may be downloaded or otherwise exported or re-exported in violation of United States export laws. You’re downloading and using the Software at your own risk.

21. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

22. Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to, Site operations, intellectual property, and our services, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Massachusetts, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or us may seek any interim or preliminary relief from a court of competent jurisdiction in Massachusetts necessary to protect the rights or property of you and us pending the completion of arbitration. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS and all of its own legal costs at all times.

u>23.Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

24.Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.

To Boingnet, Inc.: 55 Accord Park Drive, Rockland, MA 02370. Attention; General Counsel.

You’ve done it! Thanks for taking the time to read and understand the Terms associated with use of the Boingnet Service.

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