TERMS AND CONDITIONS
1. Definitions. As used in this Agreement:
1.1. “BoonService” means the on-line service delivered by Boon to Customer usingthe Boon System as described in Exhibit A.
1.2. “BoonSystem” means the technology, including hardware and software, used byBoon to deliver the Boon Service to Customer.
1.3. “ConfidentialInformation” means all information regarding a party’s business,including, without limitation, technical, marketing, financial, employee,planning, and other confidential or proprietary information, disclosed underthis Agreement, that is clearly identified as confidential or proprietary atthe time of disclosure or that the receiving party knew or should have known,under the circumstances, was considered confidential or proprietary. Customer Data is the Confidential Informationof Customer. Confidential Information ofBoon includes information derived from or concerning the Boon Service, the BoonSystem, the Documentation and the terms of this Agreement.
1.4. “CustomerData” means any documents, data, or information contained in anydocument, template or other similar file submitted by Customer through the BoonService or provided by Customer to Boon as part of the Boon Service.
1.5. “Documentation” means any usermanuals, handbooks, and online materials provided by Boon to Customer thatdescribe the features, functionality or operation of the Boon System.
1.6. “OrderForm” means a document, either physical or electronic, signed byboth parties identifying the services to be made available by Boon pursuant tothis Agreement.
2. Boon Service.
2.1. Subscriptionto the Boon Service. Subject to the terms and conditions of thisAgreement, Boon hereby grants to Customer a non-sublicensable, non-transferable(except as provided in Section 11), non-exclusive subscription to access anduse the Boon Service solely for Customer’s internal business purposes and notfor resale or to provide services to third parties.
2.2. Support. Subjectto the terms of this Agreement, Boon shall use commercially reasonable effortsto (a) maintain the security of the Boon Service; and (b) provide the supportservices described in Exhibit A.
2.3. Customer’s Use of the Boon Service. Customer will not, and willnot permit any other party to: (a) use the Boon Service to harvest, collect,gather or assemble information or data regarding other Boon customers withouttheir consent; (b) access or copy any data or information of other Booncustomers without their consent; (c) knowingly interfere with or disrupt theintegrity or performance of the Boon Service or the data contained therein; (d)harass or interfere with another Boon customer’s use and enjoyment of the BoonService; (f) reverse engineer, disassemble or decompile any component of theBoon System; (g) interfere in any manner with the operation of the BoonService, or the Boon System or the hardware and network used to operate theBoon Service; (h) sublicense any of Customer’s rights under this Agreement, orotherwise use the Boon Service for the benefit of a third party or to operate aservice bureau; (i) modify, copy or make derivative works based on any part ofthe Boon System; or (j) otherwise use the Boon Service in any manner thatexceeds the scope of use permitted under Section 2.1.
3. Fees, Payment and Suspension of Services. Customer willpay Boon the fees for the Boon Service (“Fees”) in accordance with ExhibitA, and as otherwise required by a particular Order Form. Except as set forth in a particular OrderForm, all Fees will be billed in advance on an annual basis and are due withinthirty (30) days of receipt of invoice, unless otherwise agreed by the parties.All Fees owed by Customer in connection with this Agreement are exclusive of,and Customer shall pay, all sales, use, excise and other taxes and applicableexport and import fees, customs duties and similar charges that may be leviedupon Customer in connection with this Agreement, except for employment taxesand taxes based on Boon’s net income. Boon reserves the right (in addition to any other rights or remediesBoon may have) to discontinue the Boon Service and suspend Customer’s access tothe Boon Service if any Fees set forth in Exhibit A are more thanthirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurateand up-to-date Customer billing and contact information.
4.1. BoonSystem and Technology. Customer acknowledges that Boon retains allright, title and interest in and to the Boon System and all software and allBoon proprietary information and technology used by Boon or provided toCustomer in connection with the Boon Service (the “Boon Technology”),and that the Boon Technology is protected by intellectual property rights ownedby or licensed to Boon. Other than as expressly set forth in this Agreement, nolicense or other rights in the Boon Technology are granted to the Customer. Customer hereby grants Boon a royalty-free,worldwide, transferable, sublicenseable, irrevocable, perpetual license to useor incorporate into the Boon Service any suggestions, enhancement requests,recommendations or other feedback provided by Customer, including Users,relating to the Boon Service. Boon shallnot identify Customer as the source of any such feedback.
4.2. CustomerData. Customer retains all right, title and interest in and to the CustomerData. Boon will only use Customer Datato provide the Boon Service; provided, that Boon may use informationrelated to Customer’s use of the Boon Service in de-identified aggregated formto improve the Boon Service. Customergrants to Boon all licenses in and to such Customer Data as necessary for Boonto provide the Boon Service to Customer. Boon will not otherwise knowingly use or access any Customer Data unlessauthorized to do so by Customer. Customer will not provide, post ortransmit any Customer Data that: (a)infringes, misappropriates or violates any intellectual property rights,publicity/privacy rights, law or regulation; (b) contains any viruses orprogramming routines intended to damage, surreptitiously intercept orexpropriate any system, data or personal or personally identifiable information;or (c) is deceptive, defamatory, obscene, pornographic or unlawful.
5. Term and Termination.
5.1. Term. The initialterm of this Agreement will commence on the Effective Date and continue for one(1) year. This Agreement will renew foradditional one (1) year terms unless either party gives written notice ofnon-renewal at least thirty (30) days prior to the expiration of thethen-current term. “Term”means collectively the initial term and each renewal term. Boon reserves the right to increase the Feesapplicable to any renewal term upon written notice to Customer, provided,such notice is given at least sixty (60) days prior to such renewal term.
5.2. Termination. Either partymay terminate this Agreement upon written notice if the other party materiallybreaches the Agreement and does not cure such breach (if curable) within thirty(30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (a)any amounts owed to Boon under this Agreement will become immediately due andpayable; and (b) each party will return to the other all property (includingany Customer Data) of the other party. Boon agrees that upon expiration or termination of this Agreement, Boonwill enable Customer to access the Customer Data for thirty (30) days.Thereafter, Boon will remove all Customer Data from the Boon System and allCustomer access to the Boon Service will cease. Sections 1, 3, 4, 5.2, 8, 9, and 10 willsurvive the termination of this Agreement.
6. Professional Services. Boon will provide professional services inaccordance with the terms and for the fees agreed upon by the parties as setforth in Exhibit B.
7. Warranty; Disclaimer.
7.1. LimitedWarranty. During the Term, Boon warrants that the Boon Service,when used as permitted by Boon and in accordance with the Documentation, willoperate as described in the Documentation in all material respects. If Customernotifies Boon of any breach of the foregoing warranty, Boon shall, asCustomer’s sole and exclusive remedy, provide the support services described inExhibit A.
7.2. Disclaimer. Except as expressly provided in Section 7.1,and to the maximum extent permitted by applicable law: (a) the Boon Service,Boon System and documentation are provided “as is” and “as available”and (b) Boon and its suppliers make no other warranties, express or implied, byoperation of law or otherwise, including, without limitation, any impliedwarranties of merchantability or fitness for a particular purpose.
8.1. ByBoon. If any action is instituted by a third party against Customer basedupon a claim that the Boon Service or Boon System, as delivered, infringes anythird party’s intellectual property rights, Boon shall defend such action atits own expense on behalf of Customer and shall pay all damages attributable tosuch claim which are finally awarded against Customer or paid insettlement. If the Boon Service or BoonSystem is enjoined or, in Boon’s determination is likely to be enjoined, Boonmay, at its option and expense (a) procure for Customer the right to continueusing the Boon Service, (b) replace or modify the Boon System or Boon Serviceso that it is no longer infringing but continues to provide comparablefunctionality, or (c) terminate this Agreement and Customer’s access to theBoon Service and refund any amounts previously paid for the Boon Serviceattributable to the remainder of the then-current term. This Section sets forth the entire obligationof Boon and the exclusive remedy of Customer against Boon for any claim thatthe Boon Service infringes a third party’s intellectual property rights.
8.2. ByCustomer. If any action is institutedby a third party against Boon relating to Customer’s breach of Section 4.2,Customer will defend such action at its own expense on behalf of Boon and shallpay all damages attributable to such claim which are finally awarded againstBoon or paid in settlement of such claim. This subsection states the sole andexclusive remedy of Boon and the entire liability of Customer for the claims and actions described herein.
8.3. Procedure. Any party thatis seeking to be indemnified under the provision of this Section 9 (an “IndemnifiedParty”) must (a) promptly notify the other party (the “IndemnifyingParty”) of any third-party claim, suit, or action for which it isseeking an indemnity hereunder (a “Claim”), and (b) give theIndemnifying Party the sole control over the defense of such Claim.
9. Limitation of Liability. to the extentpermitted by law, in no event shall Boon or Customer be liable for special,incidental, consequential or punitive damages or lost profits in any wayrelating to this Agreement. Except forCustomer’s payment obligations and each party’s indemnification obligationsherein, in no event shall Boon’s or Customer’s aggregate, cumulative liabilityin any way relating to this Agreement exceed the amount of fees actuallyreceived by Boon from Customer during the twelve (12) months preceding theclaim. the parties would not haveentered into this agreement but for such limitations.
10. General Provisions.
Boon may use Customer’s name and logo on Boon’swebsite and identify Customer as a customer of Boon. The terms of this Agreement are theconfidential information of Boon, and Customer will not disclose such terms withoutBoon’s written consent. Neither party may assign any rights or obligationsarising under this Agreement, without the prior written consent of the other; exceptthat either party may assign this Agreement without consent of the otherparty in connection with a merger, acquisition, corporate reorganization, orsale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing willbe null and void. Customer agrees thatBoon may subcontract certain aspects of the Boon Service to qualified thirdparties, provided that any such subcontracting arrangement will notrelieve Boon of any of its obligations hereunder. This Agreement will be governed by andconstrued in accordance with the laws of the state of California, withoutregard to its conflicts of laws principles. Excluding actions seekingsolely equitable relief, any dispute, claim or controversy arising out of orrelating to this Agreement shall be finally determined by binding arbitrationadministered by the Rules of AAA in San Francisco before one (1)arbitrator. Any notice under this Agreement must be given in writing tothe other party at the address set forth above. Notices will be deemed to have been given upon receipt (or when deliveryis refused) and may be (a) delivered personally, or (b) sent by recognizedcourier service. This Agreement and the exhibits attached hereto (as modifiedby the parties from time to time) is the entire understanding and agreement ofthe parties, and supersedes any and all previous and contemporaneousunderstandings. Only a writing signed by both parties may modify it. In the event that any provision of thisAgreement is held to be invalid or unenforceable, the valid or enforceableportion thereof and the remaining provisions of this Agreement will remain infull force and effect. Any waiver orfailure to enforce any provision of this Agreement on one occasion will not bedeemed a waiver of any other provision or of such provision on any otheroccasion. All waivers must be inwriting. The parties to this Agreement are independent contractors, and noagency, partnership, franchise, joint venture or employee-employer relationshipis intended or created by this Agreement. This Agreement may be executed incounterparts, which taken together shall form one legal instrument.
1. SOFTWARE SERVICES
Subjectto the terms and conditions of the Agreement, Boon will provide to Customer thefollowing Boon Services:
1.1 Boon Service. The Boon Service is an online employeereferral platform that [enables customers to build an engaged referral culturethrough social integrations, matching tools and gamification]
(a) On-line Documentation is made availableto Customer as part of the Boon Service.
(b) At Customer’s request and at no charge,Boon will provide an initial one hour training session to instruct Customerregarding the basics of accessing and using the Boon Service.
1.3 Support: During the Term, Boon will provide the followingsupport to Customer:
(a) Hot Line. Boon will provide a telephone number andemail address for use by Customer Monday through Friday, 9am – 5pm PT, US holidaysexcluded, for problem resolution assistance.
(b) ErrorCorrections. Boon will use commercially reasonable effortsto correct all Errors in the Boon Service reported by Customer over the phoneor in writing to Boon. Boon will utilizeremote diagnostic procedures whenever possible for Error diagnosis and bugfixes and/or workaround to correct the Error (“Error Correction”).Boon may not issue Error Corrections for all Errors. “Error”means a reproducible failure of the Boon Service to substantially conform tothe Documentation.
(c) Improvements. During theTerm, Boon may, in its sole discretion, provide Customer with updates,upgrades, enhancements, and any other improvements that Boon generally offersto other customers of the Boon Service.
1.4 Exclusions. Boon shall have no responsibility or liabilityof any kind, whether for breach of warranty or otherwise, arising or resultingfrom: (a) any problems which are not Errors; (b) problems caused by failedInternet connections or other hardware, software or equipment which is notowned, controlled or operated by Boon; (c) nonconformities resulting frommisuse, abuse, negligence, or improper or unauthorized use of all or any partof the Boon Services, Boon System, or Documentation; or (d) problems or Errorscaused by Customer’s, Third Party Applications’, or other third party’sproducts, services or equipment. Any useof or reliance on data or data output contained in the Boon Services isCustomer’s sole responsibility.
1.5 CustomerResponsibilities. It shall beCustomer’s responsibility to perform those specific services that are necessaryto establish Customer’s use of the Boon System, Documentation, and BoonServices. This includes: (a) providing employee lists to setup Useraccounts and (b) designating Users to participate in training.
2. Fees. Effectiveupon the implementation date, Customer will pay the up front annual license feelisted on the signed engagement agreement, for either by credit card orpromptly after receipt of invoice from Boon.
3. SERVICE LEVEL AGREEMENT
3.1 Definitions. Thefollowing capitalized terms will have the definitions set forth below:
a. “Force Majeure” meansany act, event, or occurrence beyond Boon’s reasonable control, including,without limitation, issues arising from bugs or other problems in the software,firmware or hardware of Boon’s suppliers, outages or issues with upstreamproviders or network carriers, acts of God, fires, floods, storms, landslides,epidemics, lightning, earthquakes, drought, blight, famine, quarantine,blockade, governmental acts or inaction, orders or injunctions, war,insurrection or civil strife, sabotage, explosions, labor strikes, workstoppages, and acts of terror.
b. “NormalBusiness Hours” means 9 a.m. to 5 p.m. Pacific Time Monday throughFriday excluding holidays.
c. “Scheduled Downtime” means the total amount of time during anycalendar month, measured in minutes, during which Customer is not able toaccess the Boon Service due to planned system maintenance performed byBoon. Boon will exercise reasonableefforts to perform scheduled system maintenance between the hours of [11p.m. and 1 a.m. Pacific Time. Boonwill provide Customer with reasonable prior notice of such Scheduled Downtime.
d. “TotalMonthly Time” means the total minutes in the relevant calendar month lessScheduled Downtime. For any partialcalendar month during which Customer subscribes to the Boon Service,availability will be calculated based on the entire calendar month, not justthe portion for which Customer subscribed.
e. “Unscheduled Downtime” means the total amountof time during any calendar month, measured in minutes, during which theCustomer is not able to access the features and functions of the Boon Service,other than Scheduled Downtime, as defined above. Unscheduled Downtime shall not include anyperiod during which the Boon Service is unavailable as a result of (i)non-compliance by Customer with any provision of this SLA; (ii) incompatibilityof any Third Party Application or Customer’s equipment or software with theBoon Service; (iii) actions or inactions of Customer or third parties; (iv) anyThird Party Application; (v) acts or omissions of Customer or Customer’semployees, agents, contractors, or vendors, or anyone gaining access to theBoon Service by means of Customer’s passwords or equipment; (vi) performance ofCustomer’s systems or the Internet; (vii) any systemic Internet failures;(viii) network unavailability or Customer’s bandwidth limitations; or (ix)Scheduled Downtime.
f. “System Availability” means, with respect to any particularcalendar month, the ratio obtained by subtracting Unscheduled Downtime duringsuch month from the Total Monthly Time, and thereafter dividing the differenceso obtained by the Total Monthly Time. Represented algebraically, System Availability for any particularcalendar month is determined as follows:
3.2 SYSTEM PERFORMANCE
a. System Availability: Boon will undertake commercially reasonablemeasures to ensure that System Availability equals or exceeds ninety-nine pointnine percent (99.9%) during each calendar month (the “Service Standard”).
b. Accessto Support; Response Times: Customer may report Unscheduled Downtime atany time (“24x7x365”) by sending Boon an e-mail to email@example.com.During Normal Business Hours, Boon will exercise commercially reasonableefforts to respond to reports of Unscheduled Downtime within 30 minutes of eachsuch report.
3.3 Customer Requirements. Customer is responsible for maintenance and management of its computernetwork(s), servers, and software, and any equipment or services related tomaintenance and management of the foregoing. Customer is responsible for correctly configuring its systems inaccordance with any instructions provided by Boon, as may be necessary forprovision of access to the features and functions of the Boon Service.
a. Credits Against Fees: In the event Unscheduled Downtime occurs,Customer will be entitled to credits against its subsequent payment obligations(as set forth in the Agreement) (“Service Credits”) according to thefollowing table:
Customer’s rights under this Section 3.4 are Customer’s sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Boon to meet the ServiceStandard required by Section 3.2.
b. MaximumService Credits: The maximum amount of Service Credits that Boon will issue to Customer for Unscheduled Downtime in a single calendar month will not exceed fifty percent (50%) of the monthly billing for such month.
c. RequestingService Credits: As a condition to Boon’s obligation to provide ServiceCredits to Customer, Customer must request such Service Credits by sending one-mail identifying the date and time of the Unscheduled Downtime for whichCustomer is requesting Service Credits, with sufficient evidence (including description of the incident and duration of the incident) to [email] withinthirty (30) days following such Unscheduled Downtime. If Customer fails to request any ServiceCredits to which Customer is entitled in accordance with this Section 3.4, Boon will have no obligation to issue such Service Credits to Customer.
Customer desires to retain Boon to provide certain services under the terms hereof. ThisProfessional Services Addendum (“PSA”) is an attachment and a part of the Agreement between Boon and Customer, and is incorporated therein by reference. This PSA sets forth terms additional to, and not in lieu of, the Agreement. Capitalized terms used but not defined here in shall have the same meanings as in the Agreement.
1. Services. Boon agrees to render professional services, including training, consulting and project management, to Customer as set forth in Exhibit B1, or an applicable Order Form. If the Services are to be provided on Customer’s premises (a) Customer shall provide safe and adequate space, power, network connections and other resources as required by Boon, (b) Customer will provide subject matter experts and other personnel as required, and (c) Boon shall adhere to Customer’s established written guidelines, which shall be provided to Boon, concerning on-site visits by contractors and the use of Customer’s computer equipment.
2. Project Administration. The contact for Customer shall provide Boon all assistance and guidance necessary for the performance of the Services.
3. Compensation. Boon shall be paid the fees set forth in Exhibit B1 for time spent performing the Services. Customer shall also reimburse Boon for reasonable travel, lodging and meal expenses for Services performed outside of Boon’s site which Boon is required to incur in providing the Services. Boon shall provideCustomer with invoices detailing the consulting hours, fees and expense reimbursements due Boon, and shall itemize and provide receipts for expenses over twenty five dollars upon request. Customer shall be responsible for all taxes associated with the Services and the payment of fees for the Services except taxes based on Boon’s net income. Customer shall be billed every two (2)weeks for the Services provided by Boon, and Customer’s payment is due within thirty (30) days of receipt of the Boon invoice. All prices are in U.S. dollars except as expressly stated otherwise.
4. License. Customer acknowledges that in order to perform theServices, Boon may be required to have access to certain Customer software or other material of Customer or Customer’s suppliers (“Customer Material”).Customer grants to Boon the right to use Customer’s software and other materials solely as required for Boon’s performance of the Services hereunder.
5. Ownership. Unless otherwise agreed in an Order Form, Boon will own all right, title and interest in and to all content, materials, technology, works of authorship and other intellectual property authored, created, developed or reduced to practice by Boon in the performance of its obligations hereunder.
6. LimitedWarranty. Boon shall perform theServices in a good and workmanlike manner. Customer’s sole remedy and Boon’s sole liability for a breach of the foregoing shall be for Boon to at its option either re-perform the Services or refund sums paid for such Services. BoonHEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE,WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES PROVIDED HEREUNDER AND WORK PRODUCT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE,NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.Boon DOES NOT WARRANT OR REPRESENT THAT THE WORK PRODUCT WILL BE FREE FROM BUGSOR THAT THE USE OF SUCH WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE WORK PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Customer understands that Boon is not responsible for and will have no liability for hardware, software, or other items or any services provided by any persons other than Boon, including without limitation, items supplied by Customer.
7. CustomerIndemnity. Customer shall indemnify and defend Boon from and against any claims of injury arising from Boon’s use of Customer’s premises not caused by Customer’s gross negligence or willful misconduct. Customer agrees to indemnify, defend and hold harmless Boon from and against any and all damages, loss, demands, fees, expenses, fines, penalties and costs (including without limitation reasonable attorneys’ fees, costs and disbursements) incurred by Boon and arising from any claims, suits, actions or proceedings brought against Boon by any third party that alleges that all or any part of the Customer Materials infringe any patent, copyright, trademark or other intellectual property right of a third party or misappropriate any third party trade secret.
8. Limitation ofLiability. NEITHER PARTY WILLBE LIABLE FOR ANY LOSS OF USE,INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL,OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED HEREUNDER REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WITHOUT PREJUDICE TO ANY REMEDY THAT Boon MAY HAVE UNDER COPYRIGHT, PATENTOR OTHER INTELLECTUAL PROPERTY LAWS. IN NO EVENT SHALL BOON’S LIABILITY TO CUSTOMER FOR SERVICES EXCEED PAYMENTS RECEIVED BY Boon FROM CUSTOMER FOR THE LAST SIX (6) MONTHS OF SERVICES FROM THE DATE THE CLAIM IS BROUGHT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THIS EXHIBIT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS EXHIBIT WOULD BE SUBSTANTIALLY DIFFERENT.