Bolster Dynamics terms of service.
This AGREEMENT is between Bolster Dynamics (hereinafter referred to as "Bolster Dynamics" or "Company") and the person or entity accepting this Agreement on the terms contained herein (hereinafter referred to as "Client").
In the event that there is a change in name or address of Bolster Dynamics or the Client, the other party will be notified in writing as soon as possible of such change. Whereas: The Client has requested Bolster Dynamics to provide the Bolster Dynamics Instant Call Connect Technology (the "Services or System"); Bolster Dynamics has agreed to provide the Services on the terms and conditions hereinafter set out; NOW THEREFORE IN CONSIDERATION of the Mutual Covenants and Agreements hereinafter contained the Parties hereto agree as follows:
BOLSTER DYNAMICS PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY ACCEPTING THESE TERMS AND CONDITIONS, CLIENT (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CLIENT IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT]; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, Bolster Dynamics WILL NOT AND DOES NOT LICENSE THE SERVICES TO CLIENT AND CLIENT MUST NOT USE THE SERVICES.
1. LICENSE GRANT AND SCOPE
Subject to and conditioned upon Client's payment of appropriate fees and Client's strict compliance with all terms and conditions set forth in this Agreement, Bolster Dynamics hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Services.
2. SERVICE AND SUPPORT
Subject to the terms and conditions of this Agreement, Bolster Dynamics will use reasonable efforts to provide the Services and to provide Client with support services, through electronic mail or telephone, in accordance with Bolster Dynamics' standard practice and in line with Client usage plan. Client shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary systems needed to use the Services (collectively, "Equipment"). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords and files, and for all uses of Client account or the Equipment. Bolster Dynamics has no obligation to provide support services if Client is in breach under this Agreement or if Client has modified the Services without prior authorization of Bolster Dynamics. Bolster Dynamics reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to maintain or enhance the quality of Services, the competitive strength of the Services, or the Services' cost efficiency or performance, or to comply with applicable law.
3. TERM AND TERMINATION
The term of this Agreement ("Term") is month to month. Either party shall have the option to terminate this entire Agreement, or to cancel any Service(s) purchased under this Agreement up to and including the last day of the Services. Client will pay in full for the Services up to and including the last day on which the Services are provided. Otherwise, the Agreement, including any modifications or revisions to it, shall continue in full force and effect up to and including the last day of termination. Upon any termination, Bolster Dynamics will maintain Client's archived data for up to thirty (30) days, and, upon request, will deliver such archived data to Client in a mutually agreed upon format (at Client's expense); thereafter, Bolster Dynamics may, but is not obligated to, delete archived data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
4. SUSPENSION OF SERVICES
Bolster Dynamics may suspend, terminate or otherwise deny Client's access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (a) Bolster Dynamics receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Bolster Dynamics to do so; or (b) Bolster Dynamics believes, in its reasonable discretion, that: (i) Client has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Bolster Dynamics' other rights or remedies, whether at law, in equity or under this Agreement.
5. PAYMENT OF FEES
Bolster Dynamics reserves the right to charge fees for your use of the Services, as described during the account registration process or when making changes to your account plan ("Fees"). You agree to pay such Fees in accordance with the terms set forth in such account registration or change to account plan. Bolster Dynamics is not obligated to provide refunds or credits for partial months or years of the Services, upgrades or downgrades, or unused time during your subscription.
All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties associated with your use of the Services, other than on Bolster Dynamics' income. You agree to pay for any such taxes that might be applicable to your use of the Services and payments made by you herein.
For the most up-to-date pricing, please go to bolsterdynamics.com We reserve the right to modify the prices charged for the Plans and Credits, or to add or remove any Plans from the Site at any time without prior notice to you. Price quotes provided to you prior to any price modification shall be honored.
Bolster Dynamics offers Plans for instant call connection services. All Plans are billed in advance of Client having access to Services and will recur every every month unless subscription is cancelled. Client acknowledges that the fees for services are billed in advance for every months usage.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. Notwithstanding the foregoing, Bolster Dynamics may (i) collect data with respect to and report on the aggregate measures of the Services' performance, and (ii) list Client as a Client of the Services in Bolster Dynamics' marketing materials.
7. COLLECTION AND USE OF INFORMATION
Notwithstanding anything contained herein to the contrary, Client acknowledges that Bolster Dynamics may collect and store information regarding use of the Services. Client agrees that Bolster Dynamics may use such information for any purpose related to any use of the Services by Client or on Client's equipment, including but not limited to improving the performance of the Services, verifying Client's compliance with this Agreement, and enforcing Bolster Dynamics's rights in the Services.
Bolster Dynamics will employ security measures in accordance with applicable industry practice. Client has and will retain sole responsibility for: (a) all Client data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client in connection with the Services; (c) Client's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks; (d) the security and use of Client's access credentials; and (e) all access to and use of the Services by or through Client Systems, with or without Client's knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client data.
9. INTELLECTUAL PROPERTY RIGHTS
Client acknowledges and agrees that the Services are provided under license, and not sold, to Client. Client does not acquire any ownership interest in the Services, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Bolster Dynamics reserves and shall retain its entire right, title, and interest in and to the Services and all Intellectual Property Rights arising out of or relating to the Services, except as expressly granted to Client in this Agreement.
10. RESTRICTIONS AND RESPONSIBILITIES
Client will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile or disassemble the Services or any software, documentation or data related to the Services (collectively, "Software"); modify or create derivative works based on the Services or y Software; or copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Services or any Software; or remove any proprietary notices or labels. To the greatest extent allowable under the law, Client hereby agrees to indemnify and hold harmless Bolster Dynamics, along with its owners, officers, directors, members, employees, agents, affiliates and contractors, from and against any claims, suits, damages, losses, liabilities, fines, judgments, settlements and expenses (including without limitation all court costs, witness fees and attorneys' fees) arising from or in connection with any actual or alleged violation of the law or of the terms of this Agreement by Client or related in any way to Client's use of Services. Although Bolster Dynamics has no obligation to monitor the content provided by Client or Client's use of the Services, Bolster Dynamics may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
11. WARRANTY AND DISCLAIMER
Client is required to use the Services in full compliance with all applicable laws and regulations including but not limited to (1) Do-Not-Call list prohibitions; (2) telemarketer licensing and bonding requirements; (3) consumer cancellation rights; (4) mandatory disclosures; (5) cell phone restrictions; (6) auto dialer and pre-recorded message restrictions; and (7) internal DNC/opt-out rules; By making any use of the Services, Client expressly warrants that Client is and shall continue to act in full compliance with the law. All Bolster Dynamics offers are void where prohibited by law. Client agrees that Client has understands the FTC's Telemarketing Sales Rule ("TSR") and the FCC's Telephone Consumer Protection Act ("TCPA"), GDPR and all other applicable laws and regulations. Client should review these rules with Client's own legal counsel to ensure that Client understands and is fully compliant. Unless otherwise agreed to in writing by the parties, Bolster Dynamics does not assume responsibility for ensuring that Client's marketing campaigns meet applicable legal requirements. Bolster Dynamics will not assume any liability if Client is ever held guilty or liable for any law violation. Bolster Dynamics shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Systems in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance or because of other causes beyond Bolster Dynamics' reasonable control, but Bolster Dynamics shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
HOWEVER, Bolster Dynamics DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, REGARDING THE LEVEL OF IMPRESSIONS OR CALLS, THE TIMING OR PLACEMENT OF DELIVERY OF SUCH IMPRESSIONS AND/OR CALLS, OR THE AMOUNT OF ANY REVENUE TO BE EARNED BY CLIENT UNDER THIS AGREEMENT. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." THE SERVICES ARE PROVIDED TO CLIENT "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, Bolster Dynamics EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, BOLSTER DYNAMICS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET CLIENT'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, COMPLY WITH ANY APPLICABLE LAW, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12. LIMITATION ON LIABILITY
IN NO EVENT WILL OTBOUNDR BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BOLSTER DYNAMICS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BOLSTER DYNAMICS COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO BOLSTER DYNAMICS PURSUANT TO THIS AGREEMENT FOR THE PRIOR ONE (1) MONTH OF THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
Client shall indemnify, defend and hold harmless Bolster Dynamics and its officers, directors, employees, agents, successors and assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any action by a third party that arises out of or relates to any: (a)Client data, including any collection Client's breach of any of its representations, warranties, covenants or obligations under this Agreement; or (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client in connection with this Agreement.
14. TCPA, DNC & SAFE HARBOR
Unless otherwise agreed to in writing by the parties, Bolster Dynamics is not responsible for ensuring that the numbers called by Bolster Dynamics are not on any applicable state or federal DNC list or that Client's use of the numbers will be in compliance with the TCPA. Client agrees to create and enforce its own internal TCPA, safe harbor and do not call policies and procedures in full compliance with the law. Federal regulations provide for a limited "safe harbor" defense to certain Do-Not-Call ("DNC") violations.
NO LEGAL, FINANCIAL OR TAX ADVICE PROVIDED
No financial, legal, or tax advice or counsel is given, or shall be deemed to have been given by Bolster Dynamics or its affiliates and contractors, or by the Services.
(i) This Agreement is governed by and construed in accordance with the internal laws of the England. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of England and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding; (ii) Bolster Dynamics will not be responsible or liable to Client, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Client equipment, loss and destruction of property, or any other circumstances or causes beyond Bolster Dynamics' reasonable control; (iii) This Agreement, together with any amendments or addenda agreed upon by the parties in writing, constitutes the sole and entire agreement between Bolster Dynamics and client with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter; (iv) Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Bolster Dynamics' prior written consent, which consent will not be unreasonably withheld; (v) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege; (vi) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Changes to Terms
Bolster Dynamics reserves the right, in its sole discretion, to change the Terms under which is offered. The most current version of the Terms will supersede all previous versions. Bolster Dynamics encourages you to periodically review the Terms to stay informed of our updates.
Effective as of May 13th, 2019