Terms of Service
Bolste offers (i) a cloud-based SaaS software productivity platform designed to improve interactions, streamline workflows, improve productivity, and help company employees and their stakeholders stay connected and informed across all roles or locations with tools such as chat, tasks, calendar, document storage, video and voice conferencing via the Bolste website located at www.bolste.com (the “Site”) and via Bolste’s mobile application (the “App” and collectively with the cloud-based SaaS software productivity platform and the Site, the “Bolste Platform”), and (ii) training services (“Training Services”) and support services (“Support Services”) in connection with the Bolste Platform. Training Services and Support Services are referred to in this Agreement collectively as the “Services.”
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING THE BOLSTE PLATFORM AND ANY OF THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OR OLDER, THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND THAT YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, BOLSTE WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU MAY NOT ACCESS OR USE OR INSTALL ANY PART OF THE BOLSTE PLATFORM OR THE SERVICES.
This Agreement was most recently updated on September 14, 2016.
Some of the capitalized terms not defined in the text shall have the meanings given those terms in Section 29 of this Agreement.
If you have any questions regarding the meaning or application of this Agreement, please direct your questions to:
1. Account Information; Subscription Fees; Payment Terms.
To use the Bolste Platform and the Services, you will need to create a Bolste account. Once you create an account, you will be a “Registered User.” When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, whether expressly authorized by you or not. You are responsible for keeping your account password secure. You may change your password at any time by updating your account profile. In addition, you agree to immediately notify Bolste of any unauthorized use of your password or account or any other security breach. Bolste will not be liable for any loss or damage arising from or related to your failure to comply with the provisions of this Agreement or to secure your account and password, including, but not limited to, selecting a password that is easily compromised. You are not allowed to use another user’s account without that user’s permission. Unless previously notified otherwise, we have the right to assume that anyone visiting our Site or the App or using the Bolste Platform or the Services with a correct account and password combination is an authorized user of that account.
By creating an account with Bolste, you represent that you are of legal age and capacity to enter into a binding contract and you are not barred by any Laws from using the Bolste Platform and the Services. You agree to provide true, accurate, current, and complete information about yourself in all required fields of the account registration form. If any of your information changes, you agree to update your account information as soon as possible. If we have reason to suspect that your registration information is not complete, current, or accurate, or that you have otherwise violated this Agreement, your account will be subject to suspension or termination, in our sole discretion, and you may be barred from using the Bolste Platform and the Services.
You shall pay Bolste all applicable subscriptions, fees and charges (the “Fees”) for the use of the Bolste Platform and the Services. If no separate fee schedule is in effect for you pursuant to an MSA at the time when you subscribe to the Bolste Platform and the Services, then you shall pay according to Bolste’s then-current fee schedule (see Bolste’s website at http://www.bolste.com/pricing). You will be required to provide your credit card information and your credit card will be billed on a recurring monthly or annual basis depending on your subscription type. Bolste utilizes third-party vendors for processing Fees. Bolste is not liable for any actions by any third-party vendors processing subscription payments, or any interaction between you and the third-party vendors.
Bolste reserves the right to adjust its Fees and other charges from time to time upon at least thirty (30) calendar days’ advance written notice to you, unless otherwise specified in an applicable fee schedule. Increases for monthly subscriptions would increase no sooner than the start of the month following our sending notice to you of that price increase, and increases for annual subscriptions would become effective following the conclusion of your then-current subscription term. Fees are non-refundable even if you discontinue your subscription or your account is suspended or terminated before the end of the paid-for subscription term. Bolste, in its sole discretion, may offer refunds in the form of credits for use in connection with payment of subscription fees.
Free limited-use subscriptions may be provided to certain individuals through invitations from paid subscribers. These free limited-use memberships are subject to all the terms and conditions set forth in this Agreement, regardless of whether you choose to purchase a subscription or not, except Fees do not apply during the period of the free limited-use membership unless you upgrade to a higher membership level during that period.
2. License to use the Bolste Platform and the Services.
Subject to your compliance with the terms and conditions of this Agreement and any applicable MSA, during the applicable subscription term, Bolste grants you a limited, revocable, nonexclusive, non-sublicenseable, non-transferable, license to access and use the Bolste Platform and the Services for your individual use (including for business reasons). You may download and copy the downloadable materials displayed on the Bolste Platform for your individual use (including for business reasons). No right, title or interest in any downloaded materials or software is transferred to you as a result of any such downloading or copying.
The limited license granted herein does not extend to any collection, aggregation, copying, duplication, display or derivative use of the Bolste Platform or the Services, or any use of data mining or similar data gathering and extraction tools for any purpose unless expressly permitted by the Company.
Bolste shall use commercially reasonable efforts to provide to you the Bolste Platform and the Services, for remote electronic access and use by you approximately 24 hours per day, seven days per week, every day of the year, except for:
- Scheduled downtime.
- Service downtime or degradation due to a Force Majeure event.
- Any other circumstances beyond Bolste’s reasonable control, including communication interruptions, your use of Third Party Materials, misuse of the Bolste Platform, or use of the Bolste Platform other than in compliance with the express terms of this Agreement and an MSA.
- Any suspension or termination of your access to or use of the Bolste Platform as permitted by this Agreement or an MSA.
3. Service and System Control.
Except as otherwise expressly provided in this Agreement or in an MSA, as between the Parties:
- Bolste has and will retain sole control over the ownership, operation, provision, maintenance and management of the Bolste Platform and the Services including the: (i) Bolste Systems; (ii) selection, deployment, modification and replacement of the Bolste Platform; and (iii) performance of any maintenance, upgrades, corrections and repairs.
- You have and will retain sole control over the ownership, operation, maintenance and management of, and all access to and use of, Your Systems, and sole responsibility for all access to and use of the Bolste Platform and the Services by any Person by or through Your Systems or any other means controlled by you.
4. Modification of the Bolste Platform and the Services.
Bolste reserves the right, in its sole discretion, to make any changes to the Bolste Platform, or the Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Bolste’s services to its customers, (ii) the competitive strength of or market for Bolste’s services or (iii) the cost efficiency or performance of the Bolste Platform or Bolste’s Services; (b) to comply with applicable Law, or (c) make other changes to the Bolste Platform or the Services as it deems necessary or appropriate from time to time. You agree that Bolste will not be liable for any modification, suspension or discontinuance of the Bolste Platform, or of any Service, content, feature or product offered through the Bolste Platform. Your continued use of the Bolste Platform and the Services after those changes will indicate your acceptance of the changes.
5. Reservation of Rights.
Except for the limited use of the Bolste Platform and Services as provided in this Agreement, nothing in this Agreement grants any right, title or interest in or to you (including any license under) of any Intellectual Property Rights in or relating to the Bolste Platform, the Services, or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Bolste Platform, the Services, and any other Bolste Properties and the Third Party Materials are and will remain with Bolste and the respective rights holders in the Third Party Materials.
6. Your Data; Storage; Security.
The Bolste Platform enables you to upload, share, and store information, documents, and other materials (“Your Data”). You retain ownership of Your Data. You grant Bolste a royalty free, worldwide, non-exclusive, transferable license to host Your Data on the Bolste Platform, and to let users authorized by you to use the Bolste Platform and the Services in connection with Your Data. Also, you grant us the right to access Your Data from time to time to provide the Services to you and to improve the Bolste Platform and the Services.
7. Subscription Term; Automatic Renewal; Termination.
Bolste offers monthly and annual subscription terms. Unless otherwise provided in an MSA applicable to you, after the initial subscription term expires, your subscription term will automatically renew on a month-to-month basis thereafter, and you will be billed the applicable monthly fees on a monthly recurring basis unless you provide written notice of your desire to terminate your account via email to Bolste’s Customer Success Department at firstname.lastname@example.org at least fifteen (15) calendar days prior to the expiration of the then-current term.
Bolste may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny your access to or use of all or any part of the Bolste Platform or the Services, without incurring any resulting obligation or liability, if: (a) Bolste receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Bolste to do so; or (b) Bolste believes, in its sole discretion, that: (i) you have failed to comply with any material term of this Agreement or accessed or used the Bolste Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you are, have been, or are likely to be involved in what Bolste perceives to be any fraudulent, misleading, inappropriate, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 7 does not limit any of Bolste’s other rights or remedies, whether at law, in equity or under this Agreement. Bolste shall not be liable even if its assessments of the conduct noted above prove not to be accurate.
We may also suspend or terminate your use of the Bolste Platform and the Services, including without limitation, your account, at any time, in our sole discretion. Upon suspension or termination, your right to use the Bolste Platform and the Services will immediately cease. You agree that any suspension or termination of your access to or use of the Bolste Platform and the Services may be effected without prior notice.
Fees are non-refundable even if your account is suspended or terminated before the end of the paid-for subscription term, and without regard to intervening downtime or other service interruption.
Upon termination of your account for any reason, Bolste has the right, but not the obligation, to delete Your Data and other information within ninety (90) calendar days from the termination date. We shall not be liable for the deletion of Your Data or for the election not to do so. Upon notice of termination of your account for any reason, you shall assume all responsibility to transfer Your Data to another site or medium at your expense.
8. Prohibited Uses.
You may use the Bolste Platform and the Services only for lawful purposes and in accordance with this Agreement. You agree not to use the Bolste Platform and the Services or permit any other party to use the Bolste Platform and the Services:
- In any way that violates any applicable Law or gives rise to civil or criminal liability.
- For the purpose of soliciting, distributing, or exploiting personally identifiable information.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set forth below in this Agreement.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate Bolste, a Bolste employee, another Register User or any other person or entity (including, without limitation, by using e-_mail addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Bolste Platform or the Services or which, as determined by us, may harm Bolste or users of the Bolste Platform and the Services, or expose them to liability.
- For any purpose that constitutes a criminal offense or illegal civil conspiracy.
- To disclose private medical or personally identifiable information of another person, except as permitted by Law.
Additionally, you agree not to directly or indirectly:
- Use the Bolste Platform in any manner that could disable, overburden, damage, or impair the Bolste Platform or interfere with any other party’s use of the Bolste Platform, and the Services, including their ability to engage in real time activities through the Bolste Platform.
- Use any robot, spider or other automatic device, process or means to access the Bolste Platform for any purpose, including monitoring or copying any of the material on the Bolste Platform.
- Use any manual process to monitor or copy any of the material on the Bolste Platform or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Bolste Platform.
- Input, upload, transmit or otherwise provide to or through the Bolste Platform or the Bolste Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent you or others from accessing or using the Bolste Platform or the Services. The foregoing does not include any Bolste disabling device authorized by Bolste.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Bolste Platform, the Bolste System, the server on which the Bolste Platform is stored, or any server, computer or database connected to the Bolste Platform.
- Reproduce, duplicate, copy, sell, resell, reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Bolste Platform, in whole or in part or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Bolste Platform or the Services.
- Frame or mirror any part of the Site or the App without our prior written consent.
- Access or use the Bolste Platform, the Services or Bolste Properties in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of Bolste or of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any Bolste customer).
- Otherwise attempt to interfere with the proper working of the Bolste Platform.
If we believe in our discretion that you are engaging or attempting to engage in any of the foregoing, then we may, but shall not have a duty, to: (a) block your access to the Bolste Platform (b) suspend or terminate any Services being provided to you, (c) implement corrective or remedial measures, (d) pursue any remedies permitted by Law, (e) pursue you for any damages caused by you or anyone using your account, and (f) notify regulatory agencies, credit reporting bureaus, and others of that activity in our discretion without liability to you.
9. User Contributions, Feedback and other Submissions.
By submitting, uploading, publicly disclosing, posting, or transmitting any files, information, content, messages, feedback, or other data for public disclosure or engaging in any other form of communication to or with the Bolste Platform (“User Contributions”), you warrant and represent that you are the owner of the User Contributions or that you have all rights necessary to submit, disclose, post, upload, transmit and otherwise use any of the User Contributions for your intended purpose. You also understand and acknowledge that you are responsible for any User Contributions you submit and you, not Bolste, have full responsibility for that content, including its legality, reliability, accuracy, and appropriateness. We are not responsible, or liable, to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Bolste Platform.
By publicly posting User Contributions to the Bolste Platform, you grant, and you represent and warrant that you have the right to grant, to Bolste an irrevocable, perpetual, fully-paid, worldwide non-exclusive license to use, copy, perform, display and distribute any User Contributions and to prepare derivative works of, or incorporate into other works, the User Contributions, and to grant and authorize sublicenses of the foregoing.
We have the right, but not the obligation, to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that the User Contribution violates this Agreement, including the Content Standards in Section 10, infringes any Intellectual Property Right or other right of any person or entity, threatens the personal safety of users of the Bolste Platform or the public or could create liability for Bolste.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their Intellectual Property Rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Bolste Platform.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Bolste Platform. YOU WAIVE AND HOLD HARMLESS BOLSTE AND ITS AFFILIATES (AS THAT TERM IS DEFINED BELOW IN THE DISCLAIMER OF WARRANTIES SECTION) FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BOLSTE AND ITS AFFILIATES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY BOLSTE AND ITS AFFILIATES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not review and have no duty to review User Contributions before it is posted on the Bolste Platform, and cannot ensure removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section, notwithstanding any notice to us of potential violations or material harm. We shall also not be liable if any protective or remedial measures we implement are not sufficient to remedy the harm.
10. Content Standards.
These Content Standards apply to any and all User Contributions. User Contributions must in their entirety comply with all applicable Laws. Without limiting the foregoing, User Contributions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other Intellectual Property Rights or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
12. Links to Third Party Sites and Resources.
For your convenience, the Bolste Platform may contain links to other sites and resources provided by third parties. These links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites, and accept no responsibility for them or for any loss or damage that may arise from your use of those sites or their content. If you decide to access any of the third party websites linked to the Bolste Platform, you do so entirely at your own risk and subject to the terms and conditions of use for those websites. We have not reviewed the contents of those websites, and providing links to any websites is not and should not be deemed an endorsement of those sites by us.
13. Third-Party Content and Services Provided by Registered Users.
The Bolste Platform may contain content supplied by parties other than Bolste. Any opinions, advice, judgments, statements or other information or content expressed or made available by third parties, are those of the respective author(s) and not of Bolste. Bolste and its Affiliates make no guarantees to the accuracy, completeness or usefulness of any content, nor its merchantability or fitness for a particular purpose.
14. Intellectual Property Rights.
All materials, including images, illustrations, designs, icons, photographs, text, software, graphics, videos, music and sound that are part of the Bolste Platform and the Services are protected by U.S. and state copyright laws, international treaties and other intellectual property laws. All copyrighted or trademarked material or other intellectual property used by us in connection with the Bolste Platform and the Services is owned by us or others who have given us permission to use their protected intellectual property.
All right, title and interest in and to the Bolste Platform, the Bolste Properties, and Third Party Materials, including all Intellectual Property Rights therein, are and will remain, respectively, with Bolste and the respective rights holders in the Third Party Materials. You have no right or license with respect to the Bolste Platform, the Bolste Properties, or Third Party Materials except as expressly authorized under this Agreement. All other rights are expressly reserved by Bolste and the respective third-party licensors. You hereby unconditionally and irrevocably assigns to Bolste your entire right, title and interest in and to any Intellectual Property Rights that you may acquire in or relating to any of the Bolste Platform and the Bolste Properties (including any rights in derivative works, improvements, modifications, or other changes relating thereto), whether acquired by operation of law, contract, assignment or otherwise. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to Bolste an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. Bolste may access your accounts and Your Data to prepare Resultant Data.
If you believe any of the content on the Bolste Platform infringes the Intellectual Property Rights of another, you may send us a notice of alleged infringement that complies with the Digital Millennium Copyright Act. Please see our DMCA Notice for more information.
15. Disclaimer of Warranties.
You acknowledge and agree that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. Bolste does not guarantee the Bolste Platform or the Services will be uninterrupted, timely, secure, or error-free or that content loss will not occur. You understand that Bolste cannot and does not guarantee or warrant uninterrupted services or that files available for downloading from the Internet, wireless networks, the Bolste Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Bolste Platform for any reconstruction of any lost data. BOLSTE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY ANY DENIAL-OF-SERVICE ATTACKS, VIRUSES OR OTHER HARMFUL MATERIAL THAT MAY INFECT YOUR SYSTEMS, COMPUTER PROGRAMS, YOUR DATA OR OTHER PROPRIETARY MATERIAL WHETHER DUE TO YOUR USE OF THE BOLSTE PLATFORM, ANY SERVICES OR OTHERWISE OR ITEMS OBTAINED THROUGH THE BOLSTE PLATFORM, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE BOLSTE PLATFORM, OR ON ANY WEBSITE LINKED TO THE BOLSTE PLATFORM.
YOUR USE OF THE BOLSTE PLATFORM AND ANY SERVICES IS AT YOUR OWN RISK. THE BOLSTE PLATFORM AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BOLSTE, NOR ANY PARENT, SUBSIDIARY, NOR OTHER AFFILIATE OF BOLSTE, NOR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (COLLECTIVELY “AFFILIATES”), MAKE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE BOLSTE PLATFORM OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER BOLSTE NOR ITS AFFILIATES REPRESENT OR WARRANT THAT THE BOLSTE PLATFORM OR THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE BOLSTE PLATFORM OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE BOLSTE PLATFORM OR ANY SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
BOLSTE AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Limitation on Liability.
IN NO EVENT WILL BOLSTE OR ITS AFFILIATES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE BOLSTE PLATFORM OR ANY SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY A DATA BREACH, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF YOUR ACCOUNT OR YOUR DATA, TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN NO EVENT SHALL BOLSTE’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE FEES PAID BY YOU TO BOLSTE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
You agree to defend, indemnify, and hold harmless Bolste and its Affiliates from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement, your use of the Bolste Platform or the Services, including, but not limited to, Your Data, your User Contributions, any use of the Bolste Platform’s content, services and products other than as expressly authorized in this Agreement or your use of any information obtained from the Bolste Platform.
18. Governing Law; Jurisdiction; Dispute Resolution.
The Parties hereby irrevocably and unconditionally agree that any action, suit or proceeding, at law or equity, relating to any Dispute shall only be brought in any federal court of the District of Arizona or any state court located in Maricopa County, State of Arizona, and hereby irrevocably and unconditionally expressly submits to the personal jurisdiction and venue of those courts for the purposes thereof and hereby irrevocably and unconditionally waives (by way of motion, as a defense or otherwise) any and all jurisdictional, venue and convenience objections or defenses that the Party may have in the action, suit or proceeding. Each Party hereby irrevocably and unconditionally consents to the service of process of any of the aforementioned courts by mailing notice to the Party’s address of record. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by law or commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction to enforce judgments obtained in any action, suit or proceeding brought pursuant to this Section.
Notwithstanding the foregoing, any Dispute shall be settled, if possible, amicably. Each Party shall promptly give the other Party written notice (a “Dispute Notice”) of any Dispute not resolved in the ordinary course of business within fifteen (15) calendar days from the date the Dispute arose.
If a Dispute arises, the Parties agree to use commercially reasonable efforts to have the individual with settlement authority meet with the same for the other Party in an effort to resolve the Dispute within twenty (20) calendar days or a later date mutually acceptable to the Parties. If the Dispute has not been resolved within twenty (20) calendar days from the date of the Dispute Notice or the date of that meeting, if scheduled during that time, whichever is later, either Party may proceed to formal mediation (“Mediation”), before a neutral mediator with at least ten (10) years of mediation experience in commercial disputes. The Mediation shall be held in Maricopa County, Arizona pursuant to the Rules for Commercial Mediation of the American Arbitration Association (the “AAA”). The Parties shall share equally the expenses of the Mediation unless otherwise agreed by them in writing. The Mediation shall be held within sixty (60) calendar days following the end of the date the first Party notifies the other that it elects to submit the matter to Mediation.
(a) If a Dispute has not been resolved pursuant to the foregoing procedures within the first eighty (80) calendar days following the date of the Dispute Notice or, if scheduled during that time, by the conclusion of the mediation process, whichever is later, either Party may proceed to binding arbitration (the “Arbitration”) in accordance with this Section:
(i) The arbitration shall be held in Maricopa County, Arizona, or as otherwise mutually agreed between the Parties before a single arbitrator. Either Party may demand arbitration by serving notice (an “Arbitration Notice”) on the other Party. The Arbitration Notice shall include a statement of the Dispute and the facts relating or giving rise thereto, in reasonable detail.
(ii) The Arbitration and all pre-hearing, hearing and post-hearing arbitration procedures shall be administered by the AAA in accordance with its Commercial Arbitration Rules. The Parties agree that the arbitrator shall have no power to alter, amend or disregard any provision of this Section or to render any award which, by its terms, effects any such alteration, amendment.
(iii) Within thirty (30) calendar days after receipt of the Arbitration Notice, the Parties shall endeavor to select the (the “Arbitrator”). If the Parties fail to appoint an Arbitrator or if the Arbitrator appointed by the Parties fails or is unable to serve, the Arbitrator shall be appointed by the AAA. The Arbitrator shall not have any existing or prior personal or financial relationship with any Party. The fees for the services of the Arbitrator shall be agreed to and shared equally by the Parties.
(iv) The decision of the Arbitrator will be in writing and will state the grounds on which the Arbitrator’s decision and any award are based. The Parties agree that the decision of the Arbitrator will be final and binding on both Parties. The decision of the Arbitrator shall be carried out voluntarily and without delay. The Parties agree that a judgment upon the arbitral award may be entered in any court having competent jurisdiction thereof. The Parties expressly submit to the jurisdiction of that court. The Parties hereby waive, to the extent permitted by applicable law, any rights to appeal or to review of the award by any court or tribunal.
Notwithstanding the foregoing, Bolste shall not be required to proceed through the foregoing procedures for any proceeding to obtain injunctive or similar relief regarding a breach by you of your duties of compliance with law, intellectual property rights or any alleged violation of your duties pursuant to Sections 3, 5, 8, 10, and 14. You hereby agree that Bolste may obtain specific performance of its rights hereunder from any arbitrator or court of competent jurisdiction.
19. Limitation on Time to File Claims.
20. Attorneys’ Fees.
21. Waiver and Severability.
No waiver by Bolste of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of that term or condition or a waiver of any other term or condition, and any failure of Bolste to assert a right or provision under this Agreement shall not constitute a waiver of that right or provision. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, that provision shall be eliminated or limited to the minimum extent so that the remaining provisions of this Agreement will continue in full force and effect.
22. Entire Agreement.
23. Geographic Restrictions.
Bolste is based in the State of Arizona in the United States. We provide the Bolste Platform and the Services for use by persons located in the United States. We make no claims that the Bolste Platform or any of the Services are accessible or appropriate outside of the United States. Access to the Bolste Platform and the Services may not be legal by certain persons or in certain countries. If you access the Bolste Platform or use the Services from outside the United States, then you do so on your own initiative and at your own risk.
24. Users Outside of the United States.
25. Changes in Regulations.
It is our policy to comply with the legal requirements applicable to the provision of our services to our customers and to other users. Accordingly, if applicable Laws conflict with the terms of this Agreement in effect from time to time, this Agreement shall automatically be amended to the extent necessary to cause it to comply with those requirements, regardless of whether we have provided you with notice of those changes.
26. Changes to the Agreement.
This Agreement was last modified on the date first written above. If we change this Agreement, except as noted in the preceding section, we will post those changes on the Bolste Platform, and we will notify you by email to the email address specified in your account. You are responsible for ensuring that we have an up to date active email address for you and for periodically visiting this Agreement to check for any updates. YOU ARE HEREBY ADVISED THAT YOUR CONTINUED USE OF THE BOLSTE PLATFORM AND THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF ANY AMENDMENTS TO AND THE MOST RECENT VERSION OF THIS AGREEMENT.
27. Force Majeure.
Neither Party shall be liable for delays or failures to perform their obligations under this Agreement (other than your obligation to pay Bolste for amounts due hereunder) to the extent the failure was caused by events such as an act of God, war, act of terrorism, power or communication system failure, act of government or any other cause beyond the reasonable control of that Party. If a force majeure event occurs, the Party affected by it shall provide prompt notice of it to the other Party.
28. Surviving Terms.
The provisions set forth in Sections 3, 5, 6, 8, 14, 15, 16, and 17, and any other right or obligation of the Parties that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
All capitalized terms not defined elsewhere in this Agreement shall have the following meanings, unless the context clearly requires otherwise.
“Bolste Properties” means the Site, the App, the Bolste Platform, the Services, and the Bolste Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Bolste or any third party in connection with the Bolste Platform, the Bolste Systems, and the Services or otherwise comprise or relate to the Bolste Platform, the Bolste Systems, or the Services. For the avoidance of doubt, Bolste Properties include Resultant Data and any information, data or other content derived from Bolste’s monitoring of your access to or use of the Bolste Platform, but do not include Your Data.
“Bolste Systems” means the information technology infrastructure used by or on behalf of Bolste, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Bolste or through the use of third-party services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, domain registration or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world including any improvements, derivative works, and modifications related thereto.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, tribal, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Resultant Data” means information, data and other content that is derived by or through the Bolste Platform or the Services and is sufficiently different from Your Data so that Your Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of that information, data or content.
“Third Party Materials” means all materials and information in any form or medium, including software, documents, data, content, specifications, products, equipment or components of or relating to the Bolste Platform that are not proprietary to Bolste.
“Your Systems” means your information technology infrastructure, including computers, mobile devices, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of third-party services.
30. Digital Millennium Copyright Act Compliance Notice.
Bolste will process notices of alleged infringement that it receives and will take appropriate actions as required by the Digital Millennium Copyright Act (the “DMCA”) and other applicable intellectual property laws. Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to Bolste’s designated agent:
Mr. Leif Hartwig
15169 N. Scottsdale Road, #450
Scottsdale, Arizona 85254
To be effective, the notification must be in writing and contain the following information (DMCA, 17 U.S.C. §512(c)(3)):
Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Bolste to locate the material.
Information reasonably sufficient to permit Bolste to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This Agreement was updated on September 14, 2016.