1.1 BombBomb is engaged in the business of providing certain e-mail distribution services, including publishing and distributing content provided by clients to lists of subscribers provided by such clients and, at the option of each client, delivering enhanced audio and/or video messaging with such content (each an “E-Mail Distribution”). Under this Agreement, BombBomb provides you with certain E-Mail Distribution Services; BombBomb does not grant you a license to any software under this Agreement. You will use the Services only for your internal business (which includes civic or charitable) purposes only and you will not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
1.2 To use the Services, you must provide complete and accurate information on the registration form on the pricing page. As part of the registration process, you will identify an e-mail address for your BombBomb system account. BombBomb reserves the right to refuse registration of, or cancel, accounts it deems inappropriate. You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account and of the Services in your name.
1.3 BombBomb will provide the E-mail Distribution services set forth in the pricing page for subscribers on the lists you provide (“Subscriber Lists”) at the fees set forth in the signup page. BombBomb may, from time to time and at its sole discretion, enhance and otherwise change the hardware, software and/or system used for its E-Mail Distributions.
2.1 Creation and Management. “Content” means any and all text, pictures, sound, video, data or other information that you provide for an E-Mail Distribution. You acknowledge that BombBomb is acting as a passive conduit of the Content and that BombBomb has no obligation, and undertakes no responsibility, to review any of the Content to determine whether it may incur liability to anyone. However, notwithstanding anything herein to the contrary, if it comes to the attention of BombBomb that any of the Content is, in the sole opinion of BombBomb, obscene, threatening, abusive, libelous or otherwise objectionable, you agree that BombBomb may refuse to publish or distribute such Content.
2.3 Content, List and Schedule Delivery. You will be solely responsible for providing to BombBomb all Content in the format(s) specified. In addition, you will provide BombBomb with full and accurate Subscriber Lists.
2.4 License Grant. For the term of this Agreement, you hereby grant to BombBomb a non-exclusive, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Content solely in connection with your E-mail Distributions. You or your third party licensors will retain all intellectual property rights in the Content and Subscriber Lists.
2.5 Subscriber Information. BombBomb does not sell, rent or otherwise make data regarding your subscribers available to third parties unless you and the list owner have obtained the subscribers’ permission and you have asked BombBomb to do so. You will be solely responsible for (a) informing your subscribers that a third party administers your e-mail distribution and (b) obtaining your subscribers’ consent to the use of their personally identifiable information in connection with the E-Mail Distribution services.
3.1 Fees. The current schedule of fees for the E-Mail Distribution services is set forth in the pricing page. BombBomb may revise such schedule from time to time, provided that the revised fees will be effective only with regard to E-Mail Distribution services that you request after the revised fees have been posted.
3.2 Payment. You must pay BombBomb monthly in advance for each month in which you want to use the E-Mail Distribution services. In addition to the listed fee, you will pay all sales, use, excise and other taxes that may be levied upon either party in connection with this Agreement or on activities related to the E-mail Distribution, except for taxes based on BombBomb’s net income. All fees are non-refundable; you acknowledge and agree that you will not be entitled to receive any refund and/or credit in connection with any prepaid fees.
5.2 BombBomb represents and warrants that it will use commercially reasonable efforts in providing all Services. BombBomb does not, however, guarantee continuous or uninterrupted E-Mail Distribution Services; in the event of interruption to the Services, BombBomb’s sole obligation will be to restore service as soon as reasonably possible.
5.3 Disclaimer. Other than as expressly stated in Section 5.2, BombBomb provides all services “AS IS” and without any warranty of any kind. You acknowledge that, except as expressly provided herein, BombBomb has not made any representations, warranties or covenants, express or implied, regarding the E-Mail Distribution services, including any implied warranty of Merchantability, Title, Non-Infringement or Fitness for a Particular Purpose or implied warranties arising from course of dealing or course of performance.
6.1 As between yourself and BombBomb, BombBomb is and will remain the sole and exclusive owner of all right, title and interest in and to Services and all intellectual property rights embodied therein. You will not, directly or indirectly: reverse engineer; decompile; disassemble; or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Services or any software, documentation, or data related to the Services (“Software”). If you are using the Services in any country in the European Community, the prohibition against reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
6.2 “Confidential Information” means information disclosed, furnished, communicated or otherwise made available by one party to the other concerning technology, know-how, product development plans, business plans, pricing, subscriber count, subscriber identity and subscriber data, whether communicated verbally or in writing; however, Confidential Information does not include any information that (a) can be shown was already known to the receiving party at the time of disclosure, (b) is independently developed by the receiving party without any use of or reference to the disclosing party’s information, (c) is provided to the receiving party by a third party without violation of the disclosing party’s rights or (d) is already in or enters into the public domain by some action other than breach of this Agreement. Each party agrees, for the term of this Agreement and 3 years thereafter, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information except as authorized by the disclosing party and not to use such Confidential Information except as permitted hereunder. The prohibition on disclosure will not apply to the extent that Confidential Information is required to be disclosed as a matter of law or by order of a court, provided that the receiving party uses reasonable efforts to provide the disclosing party with prior of such requirement and reasonably assists in obtaining a protective order therefor. Confidential Information of a party is and will remain the property of such party, notwithstanding any permissible disclosure under this Agreement.
7.1 Obligation. Each party will defend, indemnify and hold harmless the other party and its directors, officers, agents and employees for any and all losses, damages, costs, liabilities or expenses, including without limitation reasonable attorneys’ and expert witnesses’ fees (collectively, “Liabilities”), incurred or arising from any breach of such party’s respective representations, warranties or covenants in Section 5. You further agree to defend, indemnify and hold harmless BombBomb, its directors, officers, agents and employees for any Liabilities incurred or arising from any claims arising from the sale or license of goods or services in connection with any E-mail Distribution.
7.2 Mechanics. All defense and indemnity obligations are contingent upon the indemnified party: (a) providing prompt notice to the indemnifying party of any claim, action or proceeding giving rise to an indemnifiable event; (b) granting sole control of the defense and/or settlement negotiations to the indemnifying party (except that the indemnified party’s prior written consent will be required where any settlement reasonably can be expected to require a material affirmative obligation of, or result in any ongoing material liability to, the indemnified party); and (c) providing reasonable cooperation and, at the expense of the indemnifying party, assistance in the defense or settlement.
Except for each party’s obligation assumed in Section 7, in no event will either party be liable for any special, indirect, incidental or consequential damages (including but not limited to such damages arising from breach of contract or warranty or from negligence or strict liability), or for lost data, interrupted communications or lost profits arising out of or in connection with this Agreement. Except for each party’s obligation assumed in Section 7, under no circumstances will either party be liable to the other for an amount greater than the amounts paid by you to BombBomb under this Agreement.
This Agreement will be governed by the laws of the State of Colorado without giving effect to principles of conflict of laws. Each party agrees to submit to jurisdiction in Colorado. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force. The waiver by either party of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach. BombBomb may subcontract all or a portion of its responsibilities hereunder. If the performance of this Agreement or any obligation hereunder, except the making or payments, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will be excused from such performance to the extent of such prevention, restriction or interference. The parties to this Agreement are independent contractors; no agency, partnership, joint venture or employee-employer relationship is created by this Agreement. Any notices will be given to the appropriate party at the address specified on the first page or at such other address as the party has specified in writing. Such notice will be deemed given in the following circumstances: if sent by personal delivery, upon such delivery; if sent by telephone facsimile or electronic mail, upon confirmation of delivery; if sent by national carrier, 2 days after date of delivery to such carrier; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing. This Agreement, including the attached exhibits, sets forth the entire agreement of the parties and supersedes any other communications between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties.