Boost Media UK Customer Terms Agreement
Boost Media, Inc. ("Boost”) provides ad copy optimization solution services as specified in the Order Form (“Services”), and Boost Media has agreed to provide such Services to customer (“Customer”) subject to the terms and conditions of these Customer Terms (“Agreement”). Any reference to Agreement herein shall also include the Order Form. By accepting an order form that references this agreement, customer agrees to the terms of this agreement.
Scope, Services and Fees
- Boost provides an online portal and website located at www.boostmedia.com made up of Boost proprietary technology (“Boost Platform”) for the provision of ad copy Services, as described herein.
- Boost shall supply the Services specified in an Order Form subject to the terms of this Agreement. Customer agrees that Boost has the right to utilize employees or the services of any number of subcontractors or agents to complete the Services.
- Customer shall pay Boost all charges (the “Fees”) specified in an Order Form, and on the payment terms set out therein. If Customer is late in paying any Fees, Boost may, in its discretion, charge interest after the due date on all unpaid amounts at a rate of 1.5% starting on the payment due date until payment is made in full.
Intellectual Property Rights and Licenses
“Intellectual Property” means all patents, copyrights (including moral rights), trademarks, trade secrets, and other proprietary rights including the right of publicity and privacy rights.
- Ownership of Customer Content and Boost Platform. During the performance of the Services, Boost will create text and/or other content for advertisements (“Ad Copy”) using the Boost Platform, and Customer may provide Boost with certain content in order for Boost to provide such Services (“Customer Content”), as further described in an Order Form. During the performance of the Services, all campaigns to be optimized will be set to "rotate indefinitely" in Adwords and all adgroups will be set to "rotate more evenly" in Bing to enable account optimization. Customer retains any and all right, title and interest in and to Customer Content, including all Intellectual Property rights therein. Boost retains any and all right, title and interest in and to the Boost Platform and all components thereof, including all Intellectual Property rights therein.
- Ownership of Ad Copies. Provided that Customer does not terminate an Order Form before the first 12-month period and adheres to the terms of this Agreement and Order Form, including payment obligations, Customer shall be the owner of the Ad Copies created by Boost that have been accepted by Customer, including all Intellectual Property rights therein (“Works”) under that Order Form, and Boost hereby assigns all right, title and interest in and to the Works, including all Intellectual Property rights therein, to Customer. Boost agrees to assist Customer, or its designee, at Customer’s expense to secure the Customer’s rights in the Works including the execution of all applications, assignments and all other instruments necessary to secure such rights. Boost will use reasonable efforts to procure from sub-contractors who create Ad Copy a written waiver of moral rights in Ad Copy created for Customer.
During the course of this Agreement, the parties may disclose confidential and proprietary information to the other Party (“Confidential Information”). To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than reasonable care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under this Agreement. Boost may disclose Confidential Information to its own third party suppliers only if necessary and only for purposes related to the Boost services, and Boost will use reasonable efforts to ensure that any such third party suppliers maintain such information confidential. Upon request of the Disclosing Party or upon termination of this Agreement, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control.
Representations and Warranties
Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Customer warrants that: (i) the Customer Content does not and will not infringe third-party Intellectual Property rights, or any other third party right; (ii) Customer will comply with all applicable laws.
- Boost warrants that: (i) the Boost Platform, to its knowledge, does not infringe third-party Intellectual Property rights; (ii) the Services will be performed with reasonable care and skill.
Disclaimer of Warranty
No conditions, warranties or other terms apply to any Services or anything else supplied or to be supplied under this Agreement except to the extent that they are expressly set out in this Agreement. Subject to section 4, no implied conditions, warranties or other terms apply to any Services or anything else supplied or to be supplied under this Agreement (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
Limitation on Liability
- Neither Party's liability: (i) for death or personal injury caused by such Party's negligence or the negligence of such Party's employees or agents, (ii) for fraudulent misrepresentation, (iii) under any express indemnities contained in this Agreement, (iv) to pay sums properly due and owing to the other in the course of normal performance of this Agreement is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
- Subject to section 6(a), the Parties do not accept any liability under or in connection with this Agreement and in relation to anything which the Party concerned or its contractors may have done or not done in connection with this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any (i) loss of profits, (ii) loss of or damage to business or (iii) indirect, special or consequential loss or damage.
- Subject to sections 6(a) and (b), each party's total liability arising from any Contract Year in connection with any one Order Form under this Agreement and in relation to anything which the Party concerned may have done or not done in connection with the relevant Order Form during that Contract Year (whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the total amount payable to Boost under that Order Form in respect of that Contract Year.
"Contract Year" for these purposes means the relevant twelve-month period starting on the Order Form Effective Date (as defined in the Order Form) or an anniversary thereof (as appropriate). Where liability arises out of an event or series of connected events which span more than one Contract Year, all such liability shall be deemed to have occurred in the Contract Year in which the event first occurred, or in which the first of a series of connected events occurred, as appropriate.
Customer shall indemnify, defend and hold harmless Boost, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, costs, expenses (including reasonable legal fees and expenses) or other liabilities (“Liabilities”) incurred or sustained by Boost, its affiliates, their officers, directors, employees, contractors and/or agents arising out of or resulting from any third-party claim asserted against Boost that Boost's use, storage or making available of Customer Content infringes the intellectual property rights of any third party. Customer shall not settle any Liabilities that would require the payment of money by Boost or the admission of fault or responsibility by Boost without the express written consent of Boost. Boost shall have the opportunity to participate in the defense at its own cost.
Boost shall indemnify, defend and hold harmless Customer, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all Liabilities incurred or sustained by Customer, its affiliates, their officers, directors, employees, contractors and/or agents arising out of or resulting from any third-party claim asserted against Customer that Customer's use of the Boost Platform in accordance with this Agreement infringes the Intellectual Property of any third party. This indemnity will not apply to the extent a claim alleges the infringement of intellectual property rights through the use, storage or making available of Customer Content (including where incorporated in Ad Copy). Customer shall provide Boost with prompt notice of any Liabilities arising under this section. Boost shall not settle any claim that would require the payment of money by Customer or the admission of fault or responsibility by Customer without the express written consent of Customer, which shall not be unreasonably withheld. Customer shall have the opportunity to participate in the defense at its own cost.
This Agreement commences on the date of execution of an Order Form, and shall continue in full force and effect until all Order Forms executed in accordance with this Agreement have either expired or terminated (“Term”). Further, either Party may terminate this Agreement, upon written notice to the other Party if (a) such other Party commits a material breach of this Agreement and such breach is not cured within the 30-day notice period or (b) an Insolvency Event occurs in respect of the other Party or its ultimate holding company. "Insolvency Event" in relation to a person, means any of the following: (i) a meeting of creditors of that person being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that person, (ii) a chargeholder, receiver, administrative receiver or other similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that person, (iii) that person ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986, (iv) that person or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of, an administrator, (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that person; or (vi) the happening in relation to that person of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
- Binding Arbitration. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration ("LCIA"), which rules are deemed to be incorporated by reference into this section. The number of arbitrators shall be one. The place and seat of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English. Notwithstanding the foregoing, either Party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Subject to the foregoing provisions of this section, the Parties submit to the non-exclusive jurisdiction of the English courts.
- Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Independent Contractors. Nothing contained in this Agreement shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the parties. Except as contemplated by this Agreement, neither Party hereto shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
- Entire Agreement; Amendments. This Agreement, including all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and, with the exception of any statements made fraudulently, supersedes all prior and contemporaneous communications. Each Party confirms that it has not, in entering into this Agreement, relied on any representation, statement or assurance not expressly set out in this Agreement. This Agreement may only be modified by a written agreement dated subsequent to the date of this Agreement and signed by a duly authorized representative of each Party.
- Assignment. Customer may not assign this Agreement without the prior written consent of Boost, which shall not be unreasonably withheld.
- Severability. If a court of competent jurisdiction finds any provision or term of this Agreement unenforceable, that provision or term will be modified to best effect the parties’ intent, and all other terms will continue in force.
- Waivers. The failure to exercise any right provided in this Agreement shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
- Notices. All notices delivered in connection with this Agreement must be given via a paper writing or email. Notices will be deemed given as of (i) three days from the postmark date if sent via first class mail to the address of the Party to be notified; or (ii) the day emailed to the email address of the Party to be notified.