BOOMERANGFX USA, INC.SUBSCRIPTION AGREEMENT
BOOMERANGFX USA, INC.CUSTOMER SUBSCRIPTION AGREEMENT
This Customer Subscription Agreement, including any Order Forms, exhibits, links or similar references incorporated herein, (the “Agreement”) governs the Customer’s (as defined below) subscription to BoomerangFX’s cloud-based health care practice management software as a service and associated Documentation (as defined in Section 5.1) (collectively, “SaaS Products” or “Services”) from BoomerangFX USA, Inc., with an address of 4471 Dean Martin Dr. #4500 Las Vegas, NV 89103 (“BoomerangFX USA”). Services provided under the Agreement are for use in the ordinary course of Customer’s business and are not for resale by Customer. The term “Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and affiliates of that company or entity (for so long as they remain affiliates) which have entered into Order Forms. The term “affiliate” as used hereunder shall have the meaning set forth in the Securities Act of 1933.
This Agreement was last updated on October 29th, 2021. It is effective between Customer and BoomerangFX USA as of the date of Customer’s accepting this Agreement (the “Effective Date”). BoomerangFX may from time-to-time update or revise this Agreement by providing Customer with notice via email or on the BoomerangFX USA website. If Customer objects to such updates or revisions, Customer must notify BoomerangFX USA within ten (10) business days of such notice, in which case the original Agreement will continue to apply for the remainder of the Term (as defined below), not to exceed twelve (12) months. If Customer does not object to such updates or revisions within ten (10) business days of such notice, the updated or revised terms shall apply from the date such notice is provided.
Customer may place an order for Services by submitting an Order Form. An “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and BoomerangFX USA or any of their affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Order Form shall describe the scope and duration of Services, and all fees (“Fees”), including subscription fees for the SaaS Products (“Subscription Fees”), additional payment terms, billing information, key personnel and contact information for the Customer and Boomerang and have an effective date. All orders for Services are subject to acceptance by BoomerangFX USA. BoomerangFX USA may accept an order by providing Services. Accepted orders will be deemed to incorporate and be subject to the Agreement. Orders will be governed by the terms of the Agreement even when they lack an express reference to the Agreement. All other terms and conditions contained in any Customer purchase order or other document not expressly referenced in the Agreement or an Order Form will have no effect.
2. INVOICING AND PAYMENT
2.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Term.
2.2 Invoicing. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with other methods of invoicing and payment. Customer will provide BoomerangFX USA with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to BoomerangFX USA. If Customer provides credit card information to BoomerangFX USA, Customer authorizes BoomerangFX USA to charge such credit card for all fees listed in the Order Form for the Initial Term and each Renewal Term (as defined below). Such charges shall be made in advance annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, BoomerangFX USA will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to BoomerangFX USA and notifying BoomerangFX USA of any changes to such information
2.3 Subscriptions. Services are purchased as subscriptions for the period and in the levels specified in an Order Form. Unless otherwise specified in an Order Form, the initial term of a subscription shall be for one (1) year from the effective date of the Order Form (“Initial Term”) and shall automatically renew for the same period on an annual basis (“Renewal Term”) (collectively, the “Term”) until terminated in accordance with this Agreement. The level purchased cannot be decreased during the Initial Term but can be reduced prior to the start of a Renewal Term by providing BoomerangFX USA a written request of any reductions to level of subscriptions no less than sixty (60) days prior to the end of the of the current Term. BoomerangFX USA may automatically upgrade Customer’s subscription category if during the Term Customer’s usage or practice criteria surpasses the category to which Customer subscribed as set forth on the Order Form. Fees for Services payable for a Renewal Term will be at BoomerangFX USA’s then-current standard rates and will be payable in advance.
2.4 Overdue Payments. BoomerangFX USA may immediately suspend access to use the SaaS Products or any other Service for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the lesser of one- and one-half percent (1.5%) per month or the maximum rate allowed by applicable law. Customer will reimburse BoomerangFX USA for reasonable attorneys’ fees and any other costs associated with collecting overdue payments.
2.5 Taxes. Unless Customer provides BoomerangFX USA with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the license to, or use of, the SaaS Products, or provision of Services, except for any income tax assessed upon BoomerangFX USA.
2.6 Suspension of Service and Acceleration. If any fees owing by Customer under this or any other agreement for Services is thirty (30) days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized BoomerangFX USA to charge to Customer’s credit card), BoomerangFX USA may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
3. CUSTOMER RESPONSIBILITIES
Customer will cooperate with BoomerangFX USA as reasonably necessary for BoomerangFX USA’s delivery and performance of Services in a timely manner. Customer will provide BoomerangFX USA with interface and other information regarding access to third-party products in Customer’s network and necessary third-party consents and licenses to enable BoomerangFX USA’s performance under the Agreement. Customer is responsible for regularly backing up its data and files in accordance with good computing practices. BoomerangFX USA shall not be liable for any delay or failure to provide Services, and any associated costs or fees, to the extent such delay or failure is related to or is caused due to Customer’s non-cooperation, delay, or non-performance of its obligations under this Agreement. Customer will (a) be responsible the actions of any person or entity using Customer user names or passwords to access the SaaS Products and their compliance with this Agreement, Documentation and any applicable Order Forms (b) be responsible for the accuracy, quality and legality of Customer data entered into or accessed by the SaaS Products, including, but not limited to, the means by which Customer acquired data and use of such data with the SaaS Products, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Products and Documentation, and notify BoomerangFX USA promptly of any unauthorized access or use, (d) use the SaaS Products only in accordance with this Agreement, Documentation, orders and applicable laws and government regulations, and (e) comply with terms of service of any third-party applications with which Customer uses the SaaS Products.
4. BOOMERANGFX USA RESPONSIBILITIES
4.1 Product Availability. BoomerangFX USA will provide standard support for the SaaS Products to Customer at no additional charge, and/or upgraded support or professional services, if purchased. Support will be available from 8am-5pm Eastern Time Monday-Friday, excluding US state and federal holidays and Canadian provincial and federal holidays. BoomerangFX shall use commercially reasonable efforts to respond to Customer’s requests for support within twenty-four (24) hours from the time of submission by Customer, using the BoomerangFX defined ticketing submission process. BoomerangFX USA will make the SaaS Products available to Customer in accordance with the terms of this Agreement and the applicable Order Form, and BoomerangFX USA shall use commercially reasonably efforts to maintain online availability of the SaaS Products 99% of the total time in a month. BoomerangFX shall use commercially reasonable efforts to meet the obligations under this section. The obligations under this section shall not apply to: (i) planned downtime (of which BoomerangFX USA shall take reasonable efforts to provide advance electronic notice), (ii) emergency maintenance (other than planned downtime), (iii) downtime pursuant to Customer’s request, and (iv) any unavailability caused by circumstances Force Majeure (as defined in Section 17), including but not limited to, internet service provider failure or delay and denial of service attacks.
4.2 Data Protection. BoomerangFX USA agrees to maintain its information security program that includes generally recognized industry standard and recommended technical and physical safeguards reasonably designed to (i) protect the security and confidentiality of the Customer Data (as defined below), (ii) protect against anticipated threats or hazards to the security of the Customer Data, (iii) protect against unauthorized access to or use of the Customer Data, and (iv) purge or dispose of the Customer Data in a secure manner. BoomerangFX USA will promptly notify Customer upon becoming aware of any breach of BoomerangFX USA systems that results in any actual unauthorized access to or theft or other loss of the Customer Data and will take reasonable action designed to prevent further unauthorized access. BoomerangFX USA will provide information that Customer reasonably requests pertaining to the incident and will cooperate with Customer to investigate any such unauthorized access; provided BoomerangFX USA shall not be obligated to provide Customer information regarding any other customer of BoomerangFX USA or of any employee, contractor, or agent of any other customer of BoomerangFX USA. Furthermore, BoomerangFX USA will regularly monitor its security plan to protect against unauthorized access to (both physical and electronically maintained information) or use of such information that could result in substantial harm and review the scope of security measures annually. “Customer Data” means non-public information provided by Customer or any of its employees or contractors that identifies an individual and is linked to or provides access to such individual’s financial or health information, including the individual’s first name or first initial and last name, social security number, social insurance number, driver’s license number or state identification number, financial account or credit or debit account number, individually identifiable health information as defined in 45 C.F.R. 160.103, or any security code or access code or password that would permit access to any such financial account or any such individually identifiable health information.
4.3 Data Breach Notification By Customer. Customer is required to (i) report to BoomerangFX USA any evidence of data or security breach of the Services and to (ii) report to BoomerangFX and federal and local/state/provincial authorities any ransom or extortion related to such data or security breach. Further, with respect to any ransom or extortion, Customer is prohibited from settling any such claim without first notifying and consulting with federal and/or local/state/provincial law enforcement authorities and only if such federal and/or local/state/provincial authorities authorize such settlement. Customer is strongly advised to maintain a cybersecurity insurance policy or insurance rider.
4.4 Disclaimer. BoomerangFX USA makes no guaranty against malicious code, deleterious routines, and other techniques and tools employed by computer “hackers” and other third parties to create security exposures. Neither BoomerangFX USA nor its suppliers make any warranty, express or implied, that all security threats and vulnerabilities will be detected or that the Services will render an end user’s network or particular network elements safe from intrusions and other security breaches.
5. USAGE AND LIMITS OF SAAS PRODUCTS
5.1 Access and Use. During the term of this Agreement, and subject to the restrictions contained in this Agreement, BoomerangFX USA grants Customer a personal, non-sublicenseable, non-exclusive, non-transferable license to access and use the SaaS Products and Documentation provided under the Agreement and for which applicable Subscription Fees have been paid at the indicated capacity and feature levels (if any) described in an Order Form, solely for Customer’s internal business purposes at locations solely in the country on the Order Form. Except for the limited license rights expressly granted in the Agreement, BoomerangFX USA reserves all rights, title, and interest in and to the SaaS Products, underlying software and Documentation and any modifications to it. “Documentation” means BoomerangFX USA information manuals, software training and online tutorials containing operating instructions and performance specifications that BoomerangFX USA generally makes available to users of its SaaS Products, whether in print or online. Documentation does not include marketing assets or materials.
5.2 Usage Limits. SaaS Products are subject to usage limits, including the quantities specified in an Order Form, if any. Unless otherwise specified, (a) a quantity in an Order Form refers to authorized users, and the SaaS Products may not be accessed by more than that number of authorized users, (b) an authorized user’s password may not be shared with any other individual, (c) once assigned to an authorized user, an authorized user’s identification may not be reassigned to a new individual replacing one who will no longer use the SaaS Products; and (d) Customer may only provide usernames and passwords, and will limit access of the SaaS Products to, those employees and contractors of Customer accessing the Services solely for the benefit of Customer and no other person or entity. If Customer exceeds a contractual usage limit, BoomerangFX USA may require Customer to pay for excess usage in accordance with Section 2 and may deny Customer access to the Services.
5.3 Usage Restrictions. To the extent permissible under applicable law, Customer agrees not to: (i) decompile, disassemble, or reverse engineer the SaaS Products; (ii) alter, modify or create any derivative works based on the SaaS Products or Documentation, except as expressly permitted by the Documentation; (iii) merge the SaaS Products with any other software or product other than as expressly set forth in the Documentation; (iv) use, copy, sell, resell, license, sublicense, lease, rent, loan, assign, convey, make available or otherwise transfer the SaaS Products or Documentation; (v) distribute, disclose or allow use of the SaaS Products or Documentation, in any format, through any timesharing service, service bureau, network or by any other means; or (vi) allow any service provider or other third party to use or execute any software commands that cause the SaaS Products to perform functions that facilitate the maintenance or repair of any software or SaaS Products; (vii) gain access to or the use of any SaaS Products or part thereof without authorization from BoomerangFX USA; (viii) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by BoomerangFX USA; (ix) frame or mirror the SaaS Products or part thereof; (x) make any Service or Documentation available to anyone other than Customer or its affiliates, or use any Service or Documentation for the benefit of anyone other than Customer or its affiliates, (xi) use the Service 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, (xii) access the SaaS Products or Documentation any part thereof to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the SaaS Products, (c) copy any ideas, features, functions or graphics of the software or (d) determine whether the SaaS Products is within the scope of any patent, copyright or trademark; or (xiii) permit or encourage any third party to do any of the foregoing. Customer shall indemnify BoomerangFX USA for any damages, loss, expenses, or costs incurred by BoomerangFX USA, including reasonable attorney’s fees, associated with enforcing or as a result of non-compliance with this Section 5.
5.4 Backup Copies. Customer may create a reasonable number of archival and backup copies of the Documentation to comply with its documented information retention policies, provided all proprietary rights, notices, names and logos are duplicated on all copies.
5.5 Termination of License. Notwithstanding anything to the contrary contained herein, BoomerangFX USA may, with immediate effect, terminate access to the SaaS Products and any software licenses granted in this Agreement and exercise all available rights and remedies if, within ten (10) business days of Customer’s receipt of a reasonably detailed notice, Customer has not cured all breaches as notified by BoomerangFX USA.
5.6 Compliance. During the term of the Agreement and for a period of two (2) years after the termination of the Agreement, at BoomerangFX USA’s request and upon reasonable prior notice, BoomerangFX USA will have the right to inspect Customer’s compliance with this Agreement.
5.7 Suspension for Present Harm BoomerangFX USA may immediately suspend Customer’s use of, and access to, the Services if BoomerangFX USA reasonably determines that Customer’s use of the Services:
(i) is causing or is related to denial-of-service attacks or other disruptive activities,
(ii) is creating a security vulnerability for BoomerangFX USA or others,
(iii) is consuming excessive bandwidth, or
(iv) is causing harm or disruption, or has the potential to cause harm or disruption, to BoomerangFX USA or others.
Nothing in this clause limits BoomerangFX USA’s right to terminate this Agreement pursuant to Section 13.
5.8 Reservation of Rights. Subject to the limited rights expressly granted hereunder, BoomerangFX USA, its affiliates and its licensors reserve all of their right, title and interest in and to the SaaS Products, Services, Documentation and any or material, whether tangible or intangible, provided hereunder, including all intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.1 SaaS Data. ANY DATA ENTERED INTO THE SAAS PRODUCTS, AND ANY CUSTOMIZATIONS MADE TO THE SAAS PRODUCTS BY OR FOR CUSTOMER, WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER CONTINUES TO PURCHASE A SUBSCRIPTION TO THE SAAS PRODUCTS, OR EXPORTS SUCH DATA BEFORE THE END OF THE SUBSCRIPTION. CUSTOMER MAY NOT BE ABLE TO TRANSFER DATA ENTERED TO ANOTHER PRODUCT. CUSTOMER TAKES SOLE RESPONSIBILITY TO EXPORT ALL DATA BEFORE THE END OF THE SUBSCRIPTION OR SUCH DATA WILL BE PERMANENTLY LOST.
6.2 Access to Personal Data. Where Customer provides BoomerangFX USA access to any employee, customer or other individual’s personal data, or requests BoomerangFX USA to provide Customer or a third party identified by Customer with access to such data, Customer will (i) notify all relevant employees, customers and other individuals of the fact that BoomerangFX USA will have, or will be providing, access to such personal data, and (ii) indemnify BoomerangFX USA and its officers, directors, employees, subcontractors, and affiliates against, and hold each of them harmless from, any and all liabilities, costs, damages, judgments, and expenses (including reasonable attorney's fees and costs) arising out of BoomerangFX USA or its affiliates accessing, using, processing, sharing, or providing access to such data to perform the Services and other obligations and exercise its rights as contemplated in this Agreement.
7. Confidential Information
“Confidential Information” means either party’s business and/or technical information, pricing, discounts and other information or data, regardless of whether in tangible or other form and the terms of this Agreement, but not the existence of the Agreement. Customer acknowledges and agrees that all BoomerangFX USA IP, as defined at 8.2, is the Confidential Information of BoomerangFX USA Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by the receiving party prior to its receipt and was not received from a third party in breach of that third party’s confidentiality obligations; or (iv) was independently developed by the receiving party without use of the disclosing party’s Confidential Information. A receiving party is permitted to disclose Confidential Information of the disclosing party if required to do so by court order or other lawful government action, but only to the extent so ordered, provided the receiving party provides prompt written notification to the disclosing party of the pending disclosure so the disclosing party may attempt to obtain a protective order and in such an event, the receiving party will provide reasonable assistance to the disclosing party should the disclosing party attempt to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under the Agreement, including requiring non-disclosure agreements or similar undertakings from its employees, personnel, or other persons to whom Confidential Information may be disclosed and such disclosure shall be only on a need-to-know basis. The confidentiality obligations of each party will survive expiration or termination of the Agreement for two (2) years. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information, including any copies, in tangible form in that party’s possession or under its control, including Confidential Information stored on any medium. Upon request, a party will certify in writing its compliance with this Section.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Customer Owns Customer IP. Customer reserves all intellectual and industrial property rights throughout the world including, without limitation all rights, including, but not limited to, ownership, title, intellectual property rights and all other rights and interest in and to the Customer Data, including any Intellectual Property therein or thereto that Customer makes available to BoomerangFX USA, excluding Anonymized Usage Data (collectively “Customer IP”).
8.2 BoomerangFX USA Owns BoomerangFX USA IP. BoomerangFX USA reserves all intellectual and industrial property rights throughout the world including, without limitation, all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, (i) any Intellectual Property that BoomerangFX USA owned prior to providing Services under the Agreement, including any Intellectual Property in and to the SaaS Products and Documentation, (ii) any Intellectual Property that BoomerangFX USA develops, creates, or otherwise acquires independently of this Agreement, (iii) any Intellectual Property that BoomerangFX USA develops, creates, conceives, reduces to practice, or otherwise acquires during or after the Term and while performing Services under the Agreement, and (iv) Anonymized Usage Data. (“BoomerangFX USA IP”). “Anonymized Usage Data” means data or information relating to the provision, use, and performance of the Services, including data or information provided by Customer, that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to Customer or a particular authorized user, or any of Customer’s customers, and that BoomerangFX collects to improve Services and create new products and services.
8.3 “Intellectual Property” means any and all Confidential Information, any computer programs (in object or source code format or any other form, know how, trade secrets, copyrights (including future copyright, rights of authorship and rights in the nature of or analogous to copyright), mask work rights, inventions (including patents), trademarks, service marks, database rights, designs rights, design and circuit layouts, and training materials whether or not now existing and whether or not registered or registrable, including, without limitation, any right to apply for the registration of such rights and all renewals, extensions, continuations and derivative works of the foregoing..
9 WARRANTIES AND LIMITATIONS
9.1 Warranty. BoomerangFX USA warrants to Customer that during the subscription period the SaaS Products will perform materially in accordance with the applicable Documentation.
9.2 Remedies. If a SaaS Product is not in conformance with the warranty above and Customer provides BoomerangFX USA during the subscription period (i) a written notice describing in reasonable detail how the SaaS Product failed to be in conformance with the Documentation, (ii) information in sufficient detail to enable BoomerangFX USA to reproduce and analyze the failure, and (iii) remote access to the affected SaaS Products and BoomerangFX USA cannot bring the SaaS Products in conformity with the warranty, as Customer’s sole and exclusive remedy, Customer may terminate this Agreement and BoomerangFX USA will refund any prepaid fees covering the remainder of the Term of any subscription period. THE REMEDIES CONTAINED IN THIS SECTION 9.2 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST BOOMERANGFX USA WITH RESPECT TO THE NONCONFORMANCE OF SERVICES.
9.3 Exclusions and Disclaimers. The warranties do not extend to any damages, delays, loses, malfunctions, or non-conformities caused by: (i) Customer’s use of SaaS Products in violation of this the Agreement or in a manner inconsistent with the Documentation; (ii) use of non-BoomerangFX USA furnished equipment, software, or facilities, if any, with SaaS Products (except to the extent provided in the Documentation); (iii) Customer’s failure to follow BoomerangFX USA’s instructions with respect to the use, operation or maintenance of the SaaS Products; (iv) Customer’s failure to permit BoomerangFX USA timely access, remote or otherwise, to SaaS Products; (v) failure to implement Updates (defined below) as directed by BoomerangFX; (vi) SaaS Products that have been serviced or modified other than by BoomerangFX USA. “Update” means including all updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications made or provided by BoomerangFX USA pursuant to this Agreement whether or not upon requested by Customer. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER BOOMERANGFX USA NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY SERVICES OR OTHERWISE RELATED TO THE AGREEMENT, WHICH ARE HEREBY PROVIDED ON AN “AS-IS” BASIS. BOOMERANGFX USA DOES NOT WARRANT THAT THE SAAS PRODUCTS, SERVICES, DOCUMENTATION OR OTHER DELIVERABLES THAT MAY BE PROVIDED BY BOOMERANGFX HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS, COMPLY WITH ANY PARTICULAR STATE, PROVINCIAL, LOCAL OR FEDERAL LAW OR REGULATION OR MEET ANY REQUIREMENTS SET FORTH THEREIN, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, PORTALS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION OR ERROR OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOOMERANGFX USA DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN SECTION 9.2 OF THIS AGREEMENT WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
9.4 Beta Products. From time to time, BoomerangFX USA may make beta products available to Customer at no additional charge. Customer may choose to try such beta products or not in Customer’s sole discretion. Beta products are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta products are provided “As-Is” with no warranties or indemnification, however, all restrictions, and BoomerangFX USA’s reservation of rights and Customer’s obligations, shall apply to Customer’s use of beta products. Unless otherwise stated, any beta product trial period will expire upon the earlier of (i) one (1) year from the trial start date, (ii) the date that a version of the beta product becomes generally available without the applicable beta product designation, or (iii) upon BoomerangFX USA providing notice to Customer of its discontinuance. BoomerangFX USA may discontinue beta products at any time in BoomerangFX USA’s sole discretion, may never make them generally available and will have no liability for any harm or damage arising out of or in connection with a beta product.
10. INFRINGEMENT defense and INDEMNIFICATION
10.1 Defense and Indemnity. BoomerangFX USA will defend Customer, at BoomerangFX USA’s expense, against any Claim against Customer, as defined below, and will indemnify Customer as provided in this Section for any judgments, settlements and court awarded reasonable attorney’s fees resulting from such Claim. BoomerangFX USA’s obligations under this Section are conditioned on the following: (i) Customer promptly notifies BoomerangFX USA of the Claim against Customer in writing upon Customer being made aware of the Claim; (ii) Customer gives BoomerangFX USA sole authority and control of the defense and (if applicable) settlement of such Claim, provided that BoomerangFX USA may not settle any Claim against Customer unless the settlement releases Customer of all liability; and (iii) Customer provides all information and assistance reasonably requested by BoomerangFX USA to handle the defense or settlement of such Claim. For purposes of this Section, “Claim” means any cause of action in a third-party action, suit or proceeding alleging that the SaaS Product, during the period Customer subscribed to, and paid for, the SaaS Product, infringes a U.S. and/or Canada patent, copyright, or trademark of a third party.
10.2 Remedial Measures. If a SaaS Product becomes, or BoomerangFX USA reasonably believes use of a SaaS Product may become, the subject of a Claim, BoomerangFX USA may, at its own expense and option: (i) procure for Customer the right to continue use of the SaaS Product; (ii) replace or modify the SaaS Product; or (iii) if neither (i) nor (ii) is available using commercially reasonable efforts, terminate the Agreement and/or the applicable Order Form and refund Customer any prepaid subscription fees prorated for the period after the effective date of such termination, in which case Customer will cease all use of the infringing SaaS Products.
10.3 Exceptions. BoomerangFX USA will have no defense or indemnity obligation for any Claim based on: (i) SaaS Product that has been modified by someone other than BoomerangFX USA; (ii) SaaS Product that has been modified by BoomerangFX USA in accordance with Customer-provided specifications or instructions; (iii) use or combination of the SaaS Product with non-BoomerangFX authorized Third Party Products; (iv) Third Party Products; (v) the SaaS Product that is used or located by Customer in a country other than the country in which or for which it was supplied by BoomerangFX USA; or (vi) possession or use of the SaaS Product after BoomerangFX USA has informed Customer of modifications or changes in the SaaS Product required to avoid such Claim and offered to implement those modifications or changes, if such Claim would have been avoided by implementation of BoomerangFX USA’s suggestions and to the extent Customer did not provide BoomerangFX USA with a reasonable opportunity to implement BoomerangFX USA’s suggestions. Customer will defend BoomerangFX USA against any Claim, and will indemnify BoomerangFX USA for any judgments, settlements and reasonable attorney’s fees resulting from a Claim against BoomerangFX USA to the extent such Claim is based on any of subsections (i) to (vi) above. “Third Party Products” means any products manufactured by a party other than BoomerangFX USA, and may include, without limitation, products ordered by Customer from third parties pursuant to BoomerangFX USA’s recommendations.
10.4 Sole Remedy. THE FOREGOING UNDER SECTION 10.1-10.3 INCLUSIVE STATES BOOMERANGFX USA’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. THE FOREGOING ALSO IS IN LIEU OF, AND BOOMERANGFX USA DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICES.
10.5 Customer Indemnification. Customer will defend indemnify BoomerangFX USA and its officers, directors, employees, subcontractors and affiliates against, and hold each of them harmless from, any and all liabilities, costs, damages, judgments and expenses (including reasonable attorney's fees and costs): (i) any claim or action arising out of a Customer’s breach of this Agreement; (ii) for any Information Security Claim; and (iii) any claim or action arising out of BoomerangFX USA accessing, using, processing, sharing or providing access to personal data to perform the Services and other obligations and exercise its rights as contemplated in this Agreement. (each an “Indemnified Claim”). An “Information Security Claim” means any and all third party actions, suits or proceedings alleging a party’s breach of data security or information security obligations contained in this Agreement, including, but not limited to Customer’s obligations under Section 3, or industry standard security or HIPAA protocols and/or Canadian privacy statutes, or under any data privacy and/or information security laws applicable to this Agreement, including, but not limited to, claims arising out of the acts or omissions of Customer’s employees, agents, end users, any other person to whom Customer has given access to the Services, and any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
11. LIMITATION OF LIABILITY
11.1 Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, COSTS ASSOCIATED WITH A SECURITY INCIDENT OR DATA BREACH, (IncLUDING BUT NOT LIMITED TO RANSOMEWARE), COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE.
11.2 Aggregate Liability; Exclusions. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID UNDER THE AGREEMENT IN THE twelve (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL THEIR ESSENTIAL PURPOSE. HOWEVER, THESE limitations of liability in this section 11.2 WILL NOT APPLY IN CASES OF: (i) Customer’s payment OBLIGATIONS as set forth in Section 2 of this Agreement, (ii) A Party’s WILLFUL MISCONDUCT, or GROSS NEGLIGENCE, (iii) Customer’s BREACHES OF ANY LICENSE OR OTHER RESTRICTIONS, (iV) CUSTOMER’S CONTRACTUAL INDEMNIFICATION OBLIGATIONS PROVIDED IN THE AGREEMENT, OR (V) CUSTOMER’S BREACH OF ITS CONFIDENTIALITY OR DATA PRIVACY OBLIGATIONS. WITH RESPECT TO ANY damages and costs related to BREACHES OF CONFIDENTIALITY, DATA PRIVACY OR SECurity OBLIGATIONS, BoomerangFX USA’s ’S MAXIMUM AGGREGATE LIABLITY SHALL BE four (4) times the SUBSCRIPTION fees paid under the agreement for the twelve (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS OF A PARTY.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 Governing Law. The Agreement and any disputes arising out of or relating to the Agreement (“Disputes”) will be governed by laws of the State of Delaware applicable to contracts entered into and performed in Delaware excluding conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Arbitration. Subject to Section 12.3, all Disputes will be finally resolved by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association. Proceedings will be conducted in New York, New York before one arbitrator selected pursuant to those rules. The arbitrator: (i) will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions; (ii) will have authority to award compensatory damages only and will not award punitive or exemplary damages; and (iii) will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The parties, their representatives, other participants, and the arbitrator will hold the existence, content, and result of arbitration in confidence. Customer will indemnify and reimburse BoomerangFX USA for reasonable attorneys’ fees and any other costs associated with enforcing its rights under this Agreement.
12.3. Injunctive Relief. Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction in order to protect its rights pending arbitration. Without limiting a party’s rights otherwise available in law or in equity, the parties agree that a breach or threatened breach by a party of Sections 5, 7 14 or 15 would cause the other party irreparable harm and such party is entitled to injunctive relief without any bond or security required (or, where a court determines this is unenforceable, a $1,000 bond will be adequate) to bar the offending party from a breach or threatened breach.
12.4 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within two years after the cause of action arises.
The Agreement will be effective and continue in effect as described in Section 2.3 or, if applicable, in an Order Form unless terminated earlier in accordance with this Section. Either party may terminate the Agreement or an Order Form by written notice to the other party effective no less than within thirty (30) days from the date of receipt, if the other party fails to cure any material breach of the Agreement within a thirty (30) day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured. Subject to Section 2.3, Customer may at any time during the Term terminate for convenience upon ninety (90) days written notice to BoomerangFX USA and subject to such termination or cancellation fees as may be imposed by BoomerangFX. The provisions concerning confidentiality, non-solicitation, non-disparagement, and indemnity (as well as any other terms which, by their nature, are intended to survive termination or expiration) of this Agreement will survive any termination or expiration of the Agreement and any order. Except as expressly provided otherwise in the Agreement and for termination for uncured breach, if this Agreement is terminated prior to the expiration of any active Order Forms, such Order Forms shall continue to be governed by the terms of this Agreement until the end of the term of such Order Form...
14. No Solicitation
During the period BoomerangFX USA provides Services and one (1) year after termination of this Agreement, Customer will not solicit or hire for employment any BoomerangFX USA employee or employee of any BoomerangFX USA affiliate. In the event that Customer hires any BoomerangFX USA employee (or BoomerangFX USA affiliate) prior to the end of this period either as an employee or independent, Customer will pay BoomerangFX USA a finder’s fee equal to 100% of the BoomerangFX USA employee’s last gross annual salary, in addition to any other remedies available to BoomerangFX USA, at law or in equity.
Neither party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other party or any BoomerangFX USA affiliate, including, but not limited to, in reviews or social media, and in the parties’ respective official statements, and will instruct the members of their respective boards and executive officers not to knowingly disparage, criticize, or otherwise make derogatory statements regarding the other party. The foregoing will not be deemed to restrict a party or any of a party’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
Notwithstanding Section 7, Customer agrees that BoomerangFX USA may issue a public announcement regarding providing Services to Customer and include Customer's name and logo on BoomerangFX USA website, presentations, and marketing materials.
The parties will observe all applicable laws and regulations, including export and re-export laws and regulations, when using the SaaS Products. BoomerangFX USA may assign the Agreement and any order under the Agreement to any of its affiliated entities or to any entity to which BoomerangFX USA sells, transfers, conveys, assigns, or leases all or substantially all of the assets or properties used in connection with its performance of Services under the Agreement. Any assignment of the Agreement or any rights or obligations of Customer under the Agreement without the express written consent of BoomerangFX USA will be invalid. BoomerangFX USA may subcontract any or all of its obligations under the Agreement but will retain responsibility for the work. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, public health disruptions or travel restrictions, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities (“Force Majeure”). The Agreement constitutes the entire understanding of the parties with respect to the subject matter of the Agreement and will supersede all previous and contemporaneous communications, representations, or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure of either party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms. All notices under the Agreement shall be in writing and shall be deemed duly given (a) on the date of delivery when posted on the Company’s website, (b) when delivered personally, (c) when delivered to the Customer to the email address provided to BoomerangFX USA when registering or on an Order Form, (d) on the first business day following the date of dispatch if delivered by a recognized courier service, or (e) on the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.
CUSTOMER ACKNOWLEDGES THAT IT HAS CAREFULLY REVIEWED THIS AGREEMENT AND, IN ITS SOLE DETERMINATION, HAS CONSULTED LEGAL COUNSEL REGARDING THE CONTENTS OF THIS AGREEMENT. BOOMERANGFX USA, INC.ADDITIONAL SERVICES TERMS
These Additional Services Terms (the “Additional Services Terms”) are a part of, and supplemental to, the Customer Subscription Agreement between BoomerangFX USA and Customer. These Additional Services Terms apply if and to the extent Customer acquires services from BoomerangFX USA to the extent not included in the SaaS Products (the “Additional Services”).
ADDITIONAL TERMS FOR PERSONS OR ENTITIES LOCATED OUTSIDE THE UNITED STATES (“Non-US Terms”)
Notwithstanding anything to the contrary in the Agreement, for persons or entities located outside of the United States, these Non-US Terms will apply to the Agreement, including the legal entity entering into this Agreement with the Customer (which hereby replaces all references to BoomerangFX USA under this Agreement), the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, and certain other country specific terms depend on where Customer is domiciled.
If Customer is domiciled in:
The entity entering into this Agreement is:
Notices should be addressed to:
Governing Law is:
Courts with exclusive jurisdiction are:
BoomerangFX Canada Inc.
2000 Argentia Road
Suite 400-32, Plaza 3
Canada, L5N 1W1
Laws of the Province of Ontario and of Canada applicable therein
Courts of the Province of Ontario
Final - 2021-10-06
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Document Name: BOOMERANGFX USA, INC.SUBSCRIPTION AGREEMENT
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