Subscription Agreement
This Subscription Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined below), and is a contract between Boomloop LLC, and you or the entity or organization that you represent.
If you are an individual using the Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement. If you are using the Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services, (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you enter into an Order (as defined below) with Boomloop.
Access and Use of Services
Subject to the terms and conditions of this Agreement, Boomloop will make the Services available to Customer pursuant to this Agreement and the applicable Order.
Customer Obligations
Customer will: (a) be responsible for all use of the Services under its account; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Boomloop promptly of any unauthorized use; and (c) use the Services only in accordance with the Documentation and applicable laws and regulations.
Restrictions
Customer will not (and will not permit anyone else to): (a) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (b) use the Services to send spam or any other form of duplicative or unsolicited messages; (c) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (d) attempt to gain unauthorized access to the Services or their related systems or networks; or (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Services.
Fees and Payment
Customer will pay all fees specified in the applicable Order. Except as otherwise specified herein or in an Order: (a) fees are based on Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
Term and Termination
The term of this Agreement begins on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated. Either party may terminate this Agreement with 30 days' written notice if the other party materially breaches this Agreement and does not cure the breach within the notice period.
Proprietary Rights
Boomloop owns all rights, title and interest in and to the Services, the Documentation, and all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Confidentiality
Each party agrees not to disclose the other party’s Confidential Information without prior written consent, except as otherwise permitted in this Agreement.
Privacy and Data Use
Boomloop will collect, use and disclose personal information only as permitted in its Privacy Policy, available at https://boomloop.co/privacy-policy, and as otherwise permitted by law.
Warranties and Disclaimers
Boomloop warrants that it will provide the Services in a professional and workmanlike manner consistent with general industry standards. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BOOMLOOP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOOMLOOP SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITY.
Indemnification
Customer agrees to indemnify and hold harmless Boomloop and its affiliates from and against any claims arising out of Customer’s use of the Services, violation of this Agreement, or violation of applicable law.
17. Publicity
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Boomloop may (subject to its obligations of non-attribution under Section 5.4) include Customer’s name and logo in its lists of Boomloop customers, its public website and other promotional material. Boomloop agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to hello@boomloop.co.
18. Notices
Subject to change pursuant to this Section: (a) Boomloop’s physical address for notices is: Boomloop, 60 Calle Juan P Duarte, San Juan, PR 00917, and its email address for notices is hello@boomloop.co; and (b) Customer’s physical and email addresses for notices are those associated with its Order(s).
Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given:
- (i) one business day after being sent by overnight courier to the Party’s physical address;
- (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or
- (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to clause (i) or (ii)).
Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
19. Customer Affiliates
Where an Affiliate of Customer has not entered into an Order or other separate agreement directly with Boomloop, Customer may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Services under an existing Order between Boomloop and Customer. In such cases, references to “Customer” in the applicable Order and this Agreement will be deemed references to both Customer and the Participating Affiliate. Customer and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Orders hereunder. As between Boomloop and Customer, Customer accepts full liability for the acts and omissions of its Participating Affiliates.
20. Assignment
So long as Customer remains current in the payment of all amounts when due, Customer may assign this Agreement in connection with any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party. Subject to the foregoing, Customer may not assign any of its rights or obligation under this Agreement, whether by operation of law or otherwise, without Boomloop’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
21. U.S. Government Customers
The Services and Documentation are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Customer’s Authorized Users must immediately discontinue use of the Services and Documentation.
22. Independent Parties; No Third-Party Beneficiaries
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
23. Force Majeure
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
24. Governing Law; Venue
Except to the extent the issue arising under this Agreement is governed by United States federal law, this Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Puerto Rico, without giving effect to the choice of law rules of that jurisdiction. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in San Juan, Puerto Rico, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.
25. Miscellaneous
This Agreement, together with all Orders, and the AUP, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect to Customer’s or an Affiliate’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Section 28, this Agreement may be modified only by a written instrument duly executed by authorized representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
26. Definitions
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 26.
“Account Data” means information about Customer that Customer provides to Boomloop in connection with the creation or administration of its Boomloop account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Order Term, and shall in no event include Sensitive Information in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“AUP” means Boomloop’s standard Acceptable Use Policy, currently available at https://boomloop.co/acceptable-use-policy
“Authorized User” means an individual employee, agent or contractor of Customer or a Participating Affiliate for whom subscriptions to Services have been purchased pursuant to the terms of the applicable Order and this Agreement, and who has been supplied user credentials for the Services by Customer or the Participating Affiliate (or by Boomloop at Customer’s or a Participating Affiliate’s request).
“Available” means the Services are available for access and use by end users over the internet; “Availability” has a correlative meaning. Availability is assessed from the point where the Services are made available from Boomloop’s hosting provider and measured in minutes over the course of each calendar month during the Order Term. Customer may request Availability information by submitting a Support Request.
“Documentation” means Boomloop’s standard user documentation for the Services, currently available at https://boomloop.co/gdpr
“Exceptions” means any of: (a) Customer’s breach of this Agreement, an Order or the AUP; (b) Customer’s failure to configure and use the Services in accordance with the Documentation; (c) failures of, or issues with, Customer’s Environment; (d) Force Majeure Events; (e) Boomloop’s suspension of Authorized Users’ access to the Services pursuant to Section 8.3 or 16.2; or (f) maintenance during a window for which Boomloop provides notice by email or through the Services in advance.
“Feedback” means bug reports, suggestions or other feedback with respect to the Services or Documentation provided by Customer to Boomloop, exclusive of any Customer Confidential Information therein.
“GDPR” means the General Data Protection Regulation 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing of Directive 95/46/EC.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order” means a separate order for Services pursuant to this Agreement: (a) completed and submitted by Customer online at the Boomloop site and accepted by Boomloop or (b) executed by Boomloop and Customer.
“Order Term” means, with respect to each Order, the initial subscription term for the Services specified in the applicable Order and all Renewal Order Terms, if any. In the event an Order does not specify a fixed term, then the Order Term will run from the Order’s effective date until the end of the calendar month in which either Party gives notice of termination in accordance with Section 20, unless the Order is otherwise terminated earlier in accordance with this Agreement or the Order.
“Party” means each of Boomloop and Customer.
“Personal Information” means information relating to an identified or identifiable natural person that is protected by Applicable Laws with respect to privacy where the individual resides.
“Pricing Page” means the publicly available web page(s) where Boomloop publishes its list prices for Services, currently available at https://boomloop.co
“Privacy Policy” means Boomloop’s standard Privacy Policy, currently available at https://boomloop.co/privacy-policy
“Private Label Policy” means Boomloop’s standard Private Label Policy, currently available at https://boomloop.co/private-label-policy
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Sensitive Information” means the following categories of Personal Information: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating to criminal convictions and offenses. Without limiting the foregoing, the term “Sensitive Information” includes Personal Information that is subject to specific or heightened requirements under Applicable Law or industry standards, such as: Social Security numbers in the United States, protected health information under HIPAA, nonpublic personal information under the Gramm-Leach-Bliley Act, cardholder data under PCI DSS, and special categories of personal data under the GDPR.
“Service Plan” means the packaged plan and associated features, as detailed at the Pricing Page, for the hosted Boomloop service to which Customer subscribes.
“Services” means the hosted services to which Customer subscribes through, or otherwise uses following, an Order that are made available by Boomloop online via the applicable login page and other web pages designated by Boomloop. Boomloop may make such changes to the Services as it deems appropriate from time to to time, provided such changes do not materially decrease the features or functionality of the Services as they existed at the effective date of this Agreement.
“Support” means Boomloop’s standard customer technical support for the Services, currently provided exclusively via email.
27. Counterparts
Any written Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to an Order by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Order.
28. Changes to this Agreement
Boomloop may modify this Agreement at any time by posting a revised version at https://boomloop.co/subscription-agreement, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Order Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.