Terms and Conditions
Last Updated: March 17, 2021
This Service Agreement ("Agreement") is between Bolster, Inc. ("Bolster") and the customer (“Customer”) identified in the applicable Bolster order which references this Agreement ("Order"). This Agreement contains the terms and conditions that govern the access and use of the Bolster–Next Gen Fraud Prevention Platform (the “Service”). By accessing the Service and/or submitting any Orders for the Service, Customer agrees to be bound by the terms of this Agreement. If Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the legal authority to bind that company or legal entity to this Agreement.
Access and Use of the Service
1.1 Access Grant. Subject to the terms and conditions set forth in this Agreement, and subject to payment of all applicable Fees and any limitations and restrictions set forth in the applicable Order, Bolster will provide Customer with access to and the right to use the Service remotely over the Internet during the applicable Service Term solely for Customer's own internal business purposes in accordance with Bolster’s applicable official end user documentation.
1.2 Customer Account. Customer will be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account with or without Customer’s knowledge or consent.
1.3 Restrictions Customer will not, and will not permit any third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms relevant to the Service or any documentation, data or software related to the Service (“Software”); (ii) modify, translate, or create derivative works based on the Service or Software; (iii) lease, license or resell the Service, or use the Service or Software for timesharing or service bureau purposes or for any purpose other than Customer’s own internal use for its own internal benefit; (iv) remove or otherwise alter any proprietary notices or labels on the Service or Software or any portion thereof; (v) use the Service or Software to build an application or product that is competitive with any Bolster product or service, or (vi) use the Service or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights.
1.4 Third Party Services. Customer acknowledges and agrees that the Service operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Bolster is not responsible for the operation of any Third Party Services or the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Bolster does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
2.1 Fees; Payment Terms. Customer will pay Bolster the applicable fees as set forth on the Order (the “Fees”). All payments will be made in accordance with the Payment Schedule and the Method of Payment set forth in the Order. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
2.2 Taxes. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, withholding, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Bolster's net income) unless Customer has provided Bolster with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Bolster on account thereof.
Each party warrants that it has validly entered into this Agreement with the legal power to do so. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OR DEALING.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA OR COST OF COVER) AND (B) EACH PARTY'S RESPECTIVE TOTAL LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) WITH REGARD TO THE SERVICE OR USE THEREOF, OR ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT, WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO BOLSTER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.
Defense and Indemnification
5.1 Indemnification by Bolster. Bolster agrees to indemnify, defend, and hold Customer, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, resulting from any third party claim that the Service or use thereof in accordance with this Agreement constitutes an infringement of any United States patent, copyright trade secret or other intellectual property right of a third party. Notwithstanding the foregoing, Bolster will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of the Service in combination with any other device, product, software, service, process, equipment, infrastructure or material not furnished by Bolster, (b) any use of the Service that is not its intended use; or (c) any modification of any Service by anybody other than Bolster. In the event that Bolster believes that any claim is likely to occur, Bolster may, at its sole option and expense, either (i) secure for Customer the right to continue using the Service, (ii) modify or replace the Service so that it does not infringe, or (iii) require that Customer cease using the Service and refund the sums paid therefor.
5.2 Indemnification by Customer. Customer agrees to indemnify, defend, and hold Bolster, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of the Service in violation of this Agreement, including without limitation any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive.
5.3 Indemnification Process. Each party claiming indemnification shall (a) promptly give the indemnifying party written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim that adversely affects the indemnified party without prior written consent); and (c) provide all reasonable assistance, at the indemnifying party’s expense.
Proprietary Rights; Confidentiality
6.1 Proprietary Rights. As between Bolster and Customer, Bolster or its licensors own and reserve all right, title and interest in and to the Service, including any modifications, enhancements, improvements, customizations, updates or derivative works thereof and all software and other items used to provide the Service. No title to or ownership of any proprietary rights related to the Service is transferred to Customer pursuant to this Agreement or any transaction contemplated by this Agreement, other than the rights explicitly granted to Customer in Section 1 to use the Service. Bolster will be free to use or incorporate into any products or services, without any obligation to Customer, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service. As between Customer and Bolster, Customer or its licensors own all right, title and interest in and to any electronic data, text, audio, video, images or other content uploaded by Customer to the Service (“Customer Content”). Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Content. Customer hereby grants Bolster the right to transmit, use or disclose the Customer Content to provide the Service to Customer or to comply with any compelled request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law. Bolster may aggregate Customer Content with content of other customers and use such aggregated content to evaluate and improve the Service, and otherwise for Bolster’s business purposes.
6.2 Confidentiality. “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, the Service, Software and structure, organization, code, and related documentation are the Confidential Information of Bolster. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes generally available to the public through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The foregoing restrictions will not apply to any use or disclosure that is (i) required by applicable law, legal process or governmental authority, provided that the receiving party uses reasonable efforts to notify the disclosing party of the required disclosure and cooperates in obtaining a protective order to limit such disclosure; or (ii) made with the specific prior written consent of the disclosing party. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
Term and Termination
7.1 Service Term.
This Agreement will be in effect for the Service Term specified in the applicable Order, unless earlier terminated as set forth below.
7.2 Termination. In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such notice period.
7.3 Post-Termination Obligations. Upon any expiration or termination of this Agreement for any reason, Customer will cease to have access to the Service and all of Customer’s rights herein will cease, any and all liabilities accrued prior to the effective date of the termination will survive, and Customer will, within five (5) days of such termination, destroy or return all copies of the Confidential Information of Bolster, including any documentation in written or electronic form.
7.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.
Bolster will undertake commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Bolster reserves the right to suspend Customer’s access to the Service: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Bolster. Subject to the terms hereof, Bolster will provide reasonable support by email to Customer for the Services from Monday through Friday during Bolster’s normal business hours. The Service is subject to modification from time to time at Bolster’s sole discretion, for any purpose deemed appropriate by Bolster. Bolster will use reasonable efforts to give Customer prior written notice of any material modification.
Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, not to be unreasonably withheld. Notwithstanding the foregoing, each party may assign its rights and obligations under this Agreement to its successor in interest in a merger, reorganization or a sale of all or substantially all of its assets. The assigning party agrees to give the other party a written notice of the assignment within 30 days after the closing of the definitive transaction. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given, when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; and upon receipt if sent by certified, registered, or express mail (return receipt requested), postage prepaid, or by a nationally-recognized express courier with a tracking system. Bolster will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Santa Clara County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. The Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101; the Software and documentation consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the right to use the Service and any other software and documentation covered under this Agreement with only those rights set forth herein. Neither party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other party. Notwithstanding the foregoing, Bolster may, during the Term hereof, identify Customer as a customer or user of the Bolster Service and display the Customer logo on the Bolster website and other marketing materials.