Boost Media Customer Terms Agreement
Boost Media, Inc. ("Boost”) provides ad copy optimization solution services as specified in the Order Form (“Services”), and Boost Media has agreed to provide such Services to customer (“Customer”) subject to the terms and conditions of these Customer Terms (“Agreement”). Any reference to Agreement herein shall also include the Order Form. By accepting an order form that references this agreement, customer agrees to the terms of this agreement.
Scope, Services and Fees
- Boost provides an online portal and website located at www.boostmedia.com made up of Boost proprietary technology (“Boost Platform”) for the provision of ad copy Services, as described herein.
- Boost shall supply the Services specified in an Order Form subject to the terms of this Agreement. Customer agrees that Boost has the right to utilize employees or the services of any number of subcontractors or agents to complete the Services with the understanding that the terms of this Agreement shall apply to such parties.
- Customer shall pay Boost all charges (the “Fees”) specified in an Order Form, and on the payment terms set out therein. If Customer is late in paying any Fees, Boost may, in its discretion, charge interest after the due date on all unpaid amounts at a rate of 1.5% starting on the payment due date until payment is made in full.
Intellectual Property Rights and Licenses
- “Intellectual Property” means all patents, copyrights (including moral rights), trademarks, trade secrets, and other proprietary rights including the right of publicity and privacy rights.
- Ownership of Customer Content and Boost Platform. During the performance of the Services, Boost will create text and/or other content for advertisements (“Ad Copy”) using the Boost Platform, and Customer may provide Boost with certain content in order for Boost to provide such Services (“Customer Content”), as further described in an Order Form. During the performance of the Services, all campaigns to be optimized will be set to "rotate indefinitely" in Adwords and all adgroups will be set to "rotate more evenly" in Bing to enable account optimization. Customer retains any and all right, title and interest in and to Customer Content, including all Intellectual Property rights therein. Boost retains any and all right, title and interest in and to the Boost Platform and all components thereof, including all Intellectual Property rights therein.
- Ownership of Ad Copies. Provided that Customer does not terminate an Order Form before the first 12-month period and adheres to the terms of this Agreement and Order Form, including payment obligations, Customer shall be the owner of the Ad Copies created by Boost that have been accepted by Customer, including all Intellectual Property rights therein (“Works”) under that Order Form, and Boost hereby assigns all right, title and interest in and to the Works, including all Intellectual Property rights therein, to Customer. Boost agrees to assist Customer, or its designee, at Customer’s expense to secure the Customer’s rights in the Works including the execution of all applications, assignments and all other instruments necessary to secure such rights.
During the course of this Agreement, the parties may disclose confidential and proprietary information to the other Party (“Confidential Information”). To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under this Agreement. Boost may disclose Confidential Information to its own third party suppliers only if necessary and only for purposes related to the Boost services, and Boost will use reasonable endeavors to ensure that any such third party suppliers maintain such information confidential. Upon request of the Disclosing Party or upon termination of this Agreement, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control.
Representations and Warranties
- Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Customer represents and warrants that: (i) the Customer Content does not and will not infringe third-party Intellectual Property rights, or any other third party right; (ii) Customer will comply with all applicable laws.
- Boost represents and warrants that: (i) the Boost Platform, to its knowledge, does not infringe third-party Intellectual Property rights; (ii) the Services will be performed in a professional like manner.
Disclaimer of Warranty
Except as expressly provided for in this agreement, the boost service and boost platform are provided by boost “as is” without any warranty of any kind, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement.
Limitation on Liability
Except for indemnification obligations under this agreement, (i) in no event will either party be liable in connection with any matter arising out of this agreement for any incidental, indirect, special or consequential damages, whether or not the possibility or cause of such damages was known, and (ii) in no event shall either party’s liability (whether based on an action or claim in contract, tort or otherwise) exceed the amount of monies paid or owed by customer to boost under this agreement in the twelve months immediately preceding the claim.
Customer shall indemnify, defend and hold harmless Boost, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses) or other liabilities (“Liabilities”), arising out of or resulting from any third-party claim asserted against Boost to the extent any claim arises out of (i) gross negligence, misconduct or criminal acts of Customer; or (ii) breach of this Agreement by Customer. Boost shall provide Customer with prompt notice of any Liabilities arising under this section. Customer shall not settle any Liabilities that would require the payment of money by Boost or the admission of fault or responsibility by Boost without the express written consent of Boost. Boost shall have the opportunity to participate in the defense at its own cost.
Boost shall indemnify, defend and hold harmless Customer, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all Liabilities arising out of or resulting from any third-party claim asserted against Customer to the extent any claim arises out of (i) gross or willful misconduct of Boost; or (ii) breach of the representations and warranties in Section 7 herein by Boost. Customer shall provide Boost with prompt notice of any Liabilities arising under this section. Boost shall not settle any claim that would require the payment of money by Customer or the admission of fault or responsibility by Customer without the express written consent of Customer, which shall not be unreasonably withheld. Customer shall have the opportunity to participate in the defense at its own cost.
This Agreement commences on the date of execution of an Order Form, and shall continue in full force and effect until all Order Forms executed in accordance with this Agreement have either expired or terminated (“Term”). Further, either Party may terminate this Agreement, upon written notice to the other Party if such other Party commits a material breach of this Agreement and such breach is not cured within the 30-day notice period.
- Binding Arbitration. Except as provided in this section, the Parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be settled by binding arbitration to be held in San Francisco, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief), and the parties agree to the exclusive jurisdiction of the federal and state courts located in San Francisco County. California law shall apply to the merits of any dispute or claim, without reference to conflicts of law rules, that arises under this Agreement.
- Independent Contractors. Nothing contained in this Agreement shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the parties. Except as contemplated by this Agreement, neither Party hereto shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
- Entire Agreement; Amendments. This Agreement, including all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement may only be modified by a written agreement dated subsequent to the date of this Agreement and signed by a duly authorized representative of each Party.
- Assignment. Customer may not assign this Agreement without the prior written consent of Boost, which shall not be unreasonably withheld.
- Severability. If a court of competent jurisdiction finds any provision or term of this Agreement unenforceable, that provision or term will be modified to best effect the parties’ intent, and all other terms will continue in force.
- Waivers. The failure to exercise any right provided in this Agreement shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
- Notices. All notices delivered in connection with this Agreement must be given via a paper writing or email. Notices will be deemed given as of (i) three days from the postmark date if sent via first class mail to the address of the Party to be notified; or (ii) the day emailed to the email address of the Party to be notified.