END USER AGREEMENT
Last Updated: October 19, 2023
This End User Agreement (the “Agreement”) governs your (“you,” or “your”) use of the Service and by clicking on the “I Agree,” “Accept Terms,” “Start Now” or similar button on the Service registration page and executing an Order as further described below, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with BombBomb, Inc., a Delaware corporation (“BombBomb,” “we,” “our,” or “us,”), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you have named as the user, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “you,” and “your” will refer to the entity you are representing. If you are not willing to be bound by all of the terms and conditions of this Agreement, then do not select the ‘accept’ box; you will not be permitted to use the Service or any portion thereof.
We may update this Agreement from time to time in accordance with Section 9.5. The most current version of this Agreement will be posted on [insert domain name] (the “Site”).
“Account” means the online account that BombBomb provides to manage the use of the Service by the Users.
“Authorized Reseller” means an authorized reseller or distributor of the Service.
“Content” means any and all text, pictures, sound, video, data, information or other content that you provide to the Service for an E-Mail Distribution.
“Documentation” means the manuals, instructions or other documents or materials that BombBomb makes available to you in any form or medium and which describe the functionality, components, features or requirements of the Service, including any aspect of the installation, configuration, integration, operation, or use thereof.
“Email Distribution” means the transmission of Content to Subscribers by means of the Service, which may include an optional enhanced audio and/or video message.
“Losses” means losses, damages, costs, liabilities or expenses, including without limitation reasonable attorneys’ and expert witnesses’ fees.
“Order” means the purchasing order for access to the Service or related Service that: (1) is either executed by the parties and references this Agreement or entered into by you through the Site, or (2) is entered into by you and an Authorized Reseller.
“Performance Data” means aggregated, anonymized, de-identified, or other analytical information generated by use of the Service, provided, however, that such Performance Data will not include information that would constitute personal data, personal information, personally identifiable information, or a similar term under applicable privacy laws.
“Privacy Policy” means BombBomb’s then-current Privacy Policy, a copy of which is accessible here [insert domain name].
“Service” means BombBomb’s generally available Email Distribution services identified in the Order and any related services.
“Spam Policy” means BombBomb’s then-current Spam Policy, a copy of which is accessible here [insert domain name].
“Subscriber” means a Person designated by a User to receive an Email Distribution through the Service.
“Subscriber Information” means any information, including name and email address, about a Subscriber provided to the Service by a User.
“Subscription Term” means the then-current period of use set out in the Order.
“Third-Party Materials” means any third-party products or services provided with or incorporated into the Service.
“User” means you, or if you are an organization, up to five of your employees or contractors that has been granted access to use the Service pursuant to an Order.
“Your Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by you through the Service, including, without limitation, Content and Subscriber Information, provided, however, that Your Data does not include Performance Data or data that BombBomb collects on its own behalf pursuant to its Privacy Policy.
1.1 Use of the Service. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, BombBomb grants the Users the right to use and access the Service during the Subscription Term in accordance with the Documentation, Order, and this Agreement and for your internal business (which includes civic or charitable) purposes only. You will not use, or authorize any other User to use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party. Subject to the terms and conditions contained in this Agreement, BombBomb hereby grants the Users a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Subscription Term solely for your internal business purposes in connection with the Users’ use of the Service.
1.2 Login Credentials. In order to use the Service, each User may be required to provide a username, email address, password, or other personal information to create and manage an Account (“Login Credentials”). You are responsible for all actions taken through your Account. Therefore, you must keep, and cause the other Users to keep, your Account keys and Login Credentials confidential and not share them with anyone. You will notify BombBomb as soon as possible if you become aware of any compromise of your Login Credentials. BombBomb uses and collects Login Credentials for account management and support in accordance with the Privacy Policy.
1.3 Free Trials. If you are using the Service as part of a free trial, you acknowledge and agree that an individual may only register to use the Service for one free trial. If BombBomb suspects or determines, in its sole and absolute discretion, that any person has or is attempting to register for multiple free trials, then BombBomb will have the right to suspend or terminate such account or free trial immediately upon notice. BombBomb reserves the right to refuse registration of, or cancel, accounts it deems inappropriate or accounts for which incomplete or inaccurate information is provided on the registration form on the pricing page.
1.3 Changes to BombBomb Systems. BombBomb may, from time to time and at its sole discretion, enhance and otherwise change the hardware, software, systems and/or related technology used to provide the Service (the “BombBomb System”).
1.4 Restrictions. You will not, and will not authorize any other person to, access or use the Service except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, you will not, and will not authorize any other person to: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; (c) bypass or breach any security device or protection used by the Service or access or use the BombBomb System other than use of the Service and Documentation through the use of your own then valid Account and Login Credentials in accordance with this Agreement; (d) copy, modify, or create derivative works of the Service or Documentation; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (f) reverse engineer, decompile, disassemble, decode, adapt or seek to access the source code, algorithms, or non-public APIs included in the Service or BombBomb System, except to the extent expressly permitted by law (and then only with prior notice to BombBomb); (g) publish benchmarks or performance information about the Service; (h) perform any security integrity review, penetration test, load test, denial of service simulation, or vulnerability scan on the Service or the BombBomb System; (i) remove any proprietary notices from the Service or Documentation; (j) access or use the Service or BombBomb System, including by sending an Email Distribution using the Service, in any manner or for any purpose that would violate any applicable law or the rights of any person, including in violation of the Anti-SPAM Policy; or (xi) otherwise access or use the Service or BombBomb System beyond the scope of the authorization granted under this Agreement.
1.5 Suspension. BombBomb may suspend, terminate, or otherwise deny any User’s access to or use of all or any part of the Service or BombBomb System, without incurring any resulting obligation or liability, if: (a) BombBomb receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires BombBomb to do so; (b) BombBomb believes, in its good faith and reasonable discretion, that: (i) you have failed to comply with Section 1.4 or any other term of this Agreement, or any User has accessed or used the Service or BombBomb System beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (ii) any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with its use of the Service, any Email Distribution or any Content; or (c) this Agreement or the Order expires or is terminated. This Section 1.5 does not limit any of BombBomb’s other rights or remedies, whether at law, in equity, or under this Agreement.
1.6 Monitoring Use. BombBomb may remotely monitor or review use of the Service and any Email Distributions and investigate suspected violations of this Agreement. You will, and will cause your other Users to, reasonably cooperate in any such investigations.
2.1 Creation and Management. 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. Notwithstanding anything herein to the contrary, BombBomb may, in its sole and absolute discretion, refuse to publish or distribute any Content that is, in the sole opinion of BombBomb, obscene, threatening, abusive, libelous or otherwise objectionable or would violate the Spam Policy or applicable law.
2.2 Spam and Privacy Policies. You acknowledge and agree that you have read, understood and agree to be bound by the Spam Policy and the Privacy Policy, and such policies are hereby incorporated into this Agreement by this reference. You will, and will cause your other Users to, comply at all times with the Spam Policy in using the Service. BombBomb may, from time to time and in its sole discretion, revise its Spam Policy and/or Privacy Policy, such revisions to be effective immediately upon being posted on the Site.
2.3 Content, List and Schedule Delivery. You will be solely responsible for providing to BombBomb all Content in the format(s) specified in the Documentation and full and accurate Subscriber Information.
2.4 License Grant. You hereby grant to BombBomb a non-exclusive, royalty-free, worldwide license to use, copy, store, transmit, distribute, display, digitally perform, modify, and create derivative works of Your Data to the extent necessary to manage, improve, and provide the Service.
2.5 Subscriber Consents. You will be solely responsible for (a) informing your Subscribers that a third party administers your Email Distribution and (b) obtaining the consent of your Subscribers to the use of their personal information in connection with receiving any Email Distribution through the Service. With respect to obtaining such consent, you acknowledge and agree that you are solely responsible for determining what laws apply, what form of consent is necessary, and whether the Subscriber may opt in or opt out of receiving such Email Distribution. While BombBomb may include an “unsubscribe” feature in each Email Distribution as part of the Service, you will be responsible for including a clear and working unsubscribe method in the body of your Email Distributions in accordance with the BombBomb Anti-SPAM Policy.
2.6 Performance Data. You acknowledge that BombBomb owns all Performance Data collected from, generated from, or relating to the Users’ use of the Service.
3.1 Fees. Fees, expenses and invoicing may be described in each Order. Unless the Order provides otherwise, all fees and reimbursable expenses are payable in U.S. dollars and are due monthly in advance. BombBomb may charge interest on past due undisputed amounts at the rate of 1.5% per month calculated daily and compounded monthly, or the maximum amount allowed by law, whichever is less. All fees and expenses are non-cancellable and non-refundable except as set out in this Agreement.
3.2 Taxes. The fees do not include any sales or other applicable taxes, levies, duties, or similar assessments assessable by any jurisdiction. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on BombBomb’s income.
4.1 Term. This Agreement is effective for your applicable Subscription Term unless terminated as described in this Agreement. If the Order does not specify a Subscription Term, then the Subscription Term will be for a period of one year from your initial use of the Service. If the Order specifies a “month-to-month” Subscription Term, then the Subscription Term will be month-to-month unless either party gives notice of termination at least 30 days prior to the end of the then-current term.
4.2 Termination. Either party may terminate this Agreement at any time upon the material breach of the other party if such breach remains uncured for 15 days following notice to the breaching party. BombBomb may terminate this Agreement immediately upon providing notice if (a) any User does not comply with the Spam Policy or Privacy Policy, (b) any User provides objectionable Content that BombBomb refuses to distribute on one or more occasions, (c) any User registers or attempts to register for multiple free trials or you provide incomplete or inaccurate information on the registration form on the pricing page or (d) you fail to pay all fees when due on one or more occasions. BombBomb may terminate any or all Enhanced Media Service at any time. Either party may terminate this Agreement immediately upon written notice if you are using the Service only as part of a free trial.
4.3 Effect of Termination. Upon expiration or termination of this Agreement, all Users’ access to the applicable Service will immediately cease and each User must stop using Email Distributions. For the avoidance of doubt, termination of this Agreement will immediately terminate any outstanding Order.
4.4 DATA RETENTION PERIOD. Up until the expiration or termination of this Agreement, you will be entitled to extract Your Data stored on our systems. If you do not remove or delete Your Data at the expiration or termination of this Agreement, BombBomb will retain it for up to 60 days following the expiration or termination of this Agreement. Following this 60 day retention period, BombBomb has the right to permanently delete all of your Data, including any videos, at any time. This provision does not create an affirmative obligation on BombBomb to delete any data on any specific timeline. BombBomb expressly reserves the right to retain Your Data for various purposes, including, but not limited to, to comply with legal or contractual obligations or for operational purposes. You acknowledge and agree that archived/database backup versions of the Service may include archived copies of Your Data which may be retained by us for an archive cycle before being permanently deleted from our systems. You further acknowledge and agree that BombBomb has no obligation to search archived/database backup systems for any of Your Data at any time.
4.5 Survival. Your obligation to pay any unpaid fees for Service performed prior to the expiration or termination of this Agreement and Sections 5.3, 6, 7, 8 and 9 of this Agreement will survive expiration or termination of this Agreement.
5.1 Client. You represent, warrant and covenant as follows: (a) you have full rights to enter into and perform your obligations under this Agreement; (b) you are the owner or valid licensee of the Content including each element thereof and all intellectual property embodied therein; (c) you will not provide any Content that (i) infringes on any third party’s intellectual property rights, (ii) violates any law, statute, ordinance or regulation, including without limitation the laws and regulations governing privacy and export control, (iii) constitutes defamation, trade libel, invasion of privacy or violation of any right of publicity, (iv) is pornographic or obscene or (v) fails to comply with the Spam Policy and the Privacy Policy; (d) you will not use the Service to attempt to evade U.S. export controls on encryption in any way and (e) if required by applicable law, you have received the consent of the applicable Subscribers to receive the Email Distribution. You will use all reasonable efforts to provide Content that is accurate and correct in all respects. You will not submit or introduce any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines to the Service or the BombBomb System. You are responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you.
5.2 BombBomb. BombBomb represents and warrants that it will use commercially reasonable efforts in providing the Service. BombBomb does not, however, guarantee continuous or uninterrupted Service, and in the event of interruption to the Service, 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, ALL SERVICES ARE PROVIDED “AS IS” AND BOMBBOMB SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BOMBBOMB MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR BOMBBOMB MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
6.1 Intellectual Property. All right, title and interest in and to Service, the Performance Data, the BombBomb Confidential Information, and the BombBomb System, and all intellectual property rights embodied therein, will remain with and vest in BombBomb and/or its licensors. All right, title and interest in and to Your Data and all intellectual property rights embodied therein will remain with and vest in you.
6.2 Confidentiality. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) about a party’s business affairs, products, confidential intellectual property, trade secrets, information with respect to which a party has contractual or other confidentiality obligations, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated, or otherwise identified as “confidential”; provided that such information shall be deemed confidential if it is not marked or otherwise identified as “confidential” if a reasonable person familiar with the relevant industry would understand that such information is confidential; provided, 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. The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Each party’s obligations of non-disclosure with regard to Confidential Information are effective during the term of this Agreement and will expire three years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7.1 Obligation. Each party will defend, indemnify and hold harmless the other party and such party’s directors, officers, agents and employees from and against any and all Losses incurred by such person in connection with or related to any claim, action or proceeding brought by a third party that is not affiliated with any party hereto (a “Third Party Claim”) 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 Losses incurred in connection with or related to any Third Party Claim arising from the marketing, 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.
