Terms and Conditions
Client and The Boulevard agree that as between them the following Agreement will apply to the services provided pursuant to this Agreement. By signing or otherwise accepting this Agreement, or by using The Boulevard’s software or services offered pursuant to this Agreement, Client hereby accepts and agrees to be to be bound by this Agreement.
Whenever used in this Agreement, any schedules, exhibits, or addenda to this Agreement, the following terms shall have the meanings assigned below: “Theboulevardde.com,” or “The Boulevard,” refer to The Boulevard; and The words “Client” and “you” refer to the Client whether an individual, corporation, government agency, or other entity. You may not use The Boulevard Services unless you accept the provisions of this Agreement and have the authority and legal right to contract for services. Any individual contracting for services as a company, organization or other formed entity represents and warrants that he or she is authorized and intends by those actions to bind the company or such other organization to this Agreement, and any individual accessing The Boulevard software or services under Client’s account may only access and use such in accordance with and pursuant to this Agreement.
1.1. “Agreement” means this Agreement between Client and The Boulevard, inclusive of all schedules, exhibits, attachments, addenda and other documents incorporated by reference which specifies the licenses and services being purchased by Client, and that reference this Agreement, its provision, term and conditions or is otherwise made a part of the Agreement.
1.2. “Authorized User” means Client’s employee, employees, contractors, subcontractors, customers, or agents assigned unique credentials to access and use The Boulevard.
1.3. Client Data” means video content, data and information provided by Client and made available to The Boulevard during Client contracting with The Boulevard. For clarity, Client Data may include, but is not limited to, User Data and Client’s legally acquired Intellectual Property Rights. Client Data does not include Platform Generated Data.
1.4. “Intellectual Property Rights” means any rights arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other global jurisdiction: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations-in-part, reexaminations, reissues, and renewals related thereto), copyrights (including, but not limited to, any applications, registrations and renewals related thereto), trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, trade secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated.
1.5. “The Boulevard Platform” means the hosted, web-based technology platform developed by The Boulevard which permits its clients to upload, host, manage and edit content, and which allows that users may access and use such content, including all Updates, all Software incorporated therein, any written materials and other documentation that The Boulevard may make available, and all Intellectual Property Rights in the foregoing.
1.6. “The Boulevard Services” means access to and use of The Boulevard Platform and the Platform Generated Data pursuant to Section 3 of this Agreement.
1.7. “Platform Generated Data” means any data generated, recorded or automatically collated by The Boulevard Platform in the course of providing the Service(s) including, without limitation, aggregated or anonymized data that cannot be linked to individual end-users, data relating to the frequency and mode of use of the features and functionality of the Service by end-users, preference settings and personalization of the Service by end-users, the time spent on different elements of the Service, the geographical location of end-users, types of browsers and devices and other technical and statistical information derived from the operation of Theboulevardde.com Platform and its use by end-users. For the avoidance of doubt, Platform Generated Data excludes Client Data and User Data.
1.8. “Software” means all software, technology, implementation tools, editing tools, documentation, text, typefaces, graphics, logos, button icons, images, audio clips, designs, illustrations, configurations, displays, screens, concepts, storyboard process, and other materials.
1.9. “Update” means any functional improvement, bug fix or other development that is incorporated into Theboulevardde.comPlatform other than a Modification.
1.10. “User Data” means the data and information provided by Client’s end users to either Client or to Theboulevardde.com in accordance with this Agreement, including, but not limited to, end user names, email or postal addresses, phone numbers and account information (excluding, for the avoidance of doubt, data generated or collected automatically by Theboulevardde.comPlatform in the course of or in connection with end-users’ use of the Service).
2. SERVICES AND LICENSE
2.1. Service Subscription. Subject to compliance with this Agreement, The Boulevard will provide Client with access to and use of The Boulevard Services during the paid-up subscription period (as described below) and within any service usage limits indicated in the Order Form. The BoulevardServices may be accessed only through The Boulevard’s designated web-based interface or other tools provided by Theboulevardde.com, as applicable.
2.2. User Registration and Acknowledgement. Client agrees that, as a condition of contracting for The Boulevard Services, The Boulevard may require, as a condition of any authorized use of The Boulevard Services, that any such Authorized User create an individual profile under Client’s account and acknowledge awareness of, and agreement to abide by, the provisions of this Agreement. This section does not limit Client responsibilities under this Agreement, including those pertaining to its Authorized Users.
2.3. Client Data and Security. The Boulevard shall put in place all commercially reasonable security measures to protect against unauthorized access, alteration, disclosure, and destruction of the Client Data, where possible employing industry standard technologies to do so. If a Client’s license agreement or order form includes a Data Processing Annex, such Data Processing Annex shall have effect in accordance with its terms in relation to the processing of personally identifiable data as part of The Boulevard Service.
2.4. Usage Limitations. In addition to this Agreement, Client and Client’s Authorized Users’ rights to access and use The Boulevard Services are subject to any limitations and restrictions indicated in the Order Form and any other exhibit or attachment thereto. To the extent of any conflict or inconsistency between or among any of these documents, (i) terms that explicitly modify such other inconsistent terms will govern, and (ii) otherwise, the more restrictive terms will govern.
2.5. Availability. Reasonable efforts will be made to make The Boulevard Services available without material interruption, subject to periodic downtime for scheduled maintenance; however, the parties recognize that Internet connectivity issues, unavailability of third-party databases and systems, or other factors outside of reasonable control may limit or restrict availability from time to time. Reasonable efforts will be made to restore service in the event of unplanned unavailability within The Boulevard’s control, and to provide Client with notice of any scheduled unavailability. Where Client contracts for additional service-level commitments, Client will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached hereto. The remedies expressly provided in the Service Level Agreement are Client’s sole and exclusive remedy, and The Boulevard’s entire obligation, with respect to any service-level violation.
2.6. Maintenance and Support. If the Client contracts for maintenance and/or technical support in connection with The Boulevard Services, then (unless otherwise set forth in an Order Form or such other The Boulevard documentation): (i) maintenance will consist of access to new features or performance improvements in The Boulevard Services if and when The Boulevard makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) technical support will consist of first-level telephone or email assistance in accordance with The Boulevard’s standard practices and procedures.
3. CLIENT RESPONSIBILITIES
3.1. Generally. Client retains full responsibility for its and its Authorized Users’ use of The Boulevard Services. Client is responsible for obtaining and maintaining any equipment and ancillary services necessary to connect to, access or otherwise utilize The Boulevard Services, including, without limitation, modems, hardware, software (including web browsers and operating systems), networking, web servers and the like, and for ensuring the security of such equipment, including account passwords and files, and the use of such equipment. Client shall also be responsible for maintaining the security of such equipment, Client-only account, passwords, and files, and for all uses of Client account or equipment with or without Client’s knowledge or consent. For clarity, the preceding sentence does not diminish any usage restrictions or limitations set forth in the Agreement.
3.2. General Restrictions. Client may not: (i) copy, reproduce, modify, adapt, decompile, disassemble, or reverse engineer The Boulevard Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) use, modify, reproduce, sublicense, distribute, loan, lease, sell, license, or otherwise distribute or provide third parties with access to The BoulevardServices, or use The Boulevard Services for time sharing or similar purposes for the benefit of any third party, except as expressly permitted under this Agreement; (iii) remove, modify or obscure any copyright or proprietary notices contained in The Boulevard Services or any output thereof; (iv) breach, disable, tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by The BoulevardServices; (v) provide Content which knowingly or inadvertently violates the copyright, trademark, wordmark or other intellectual property rights of any jurisdiction, is otherwise unlawful, offensive or harassing; (vi) introduce or transmit any virus or other malicious code to or through The Boulevard Services; (vii) access or use (or permit a third party to access or use) TheBoulevard Services for purposes of monitoring the availability, performance or functionality of The Boulevard Services or for any other benchmarking or competitive purposes (viii) access or use (or permit a third party to access or use) The BoulevardServices for any unlawful purpose or any manner not authorized by this Agreement.
3.3. Compliance. Client is solely responsible for ensuring that it and its Authorized Users are aware of and comply with the provisions of this Agreement, and all laws and regulations pertaining pertain to the use of The Boulevard Services or the information/content it makes available through The BoulevardServices. Client represents and warrants that it and its Authorized Users are knowledgeable as to federal, state, and local laws and regulations pertaining to Client’s business, operations or intended use of The Boulevard Services. Client is solely responsible for the lawful and unlawful operation of any promotions, sweepstakes or contests Client administers or offers via The Boulevard Services, including any necessary bonding and registration with any State authority; and developing and communicating rules governing Client’s promotions, sweepstakes or contests administered or offered using The Boulevard Services, which rules must state the basic parameters of the giveaway, including, but not limited to, how to enter, when to enter and any eligibility requirements.
4. TERM AND TERMINATION
4.1. Duration and Renewal. A subscription for The BoulevardServices will remain in effect throughout the initial subscription term specified in the Exhibit A (unless terminated as set forth below), and will automatically renew for successive periods of one year or such other specified duration (each, a “Renewal”).
4.2. Termination. A party may terminate the Agreement for a material breach by the other party that (i) remains uncured more than thirty (30) days after giving written notice of the breach or (ii) is, by its nature, incurable. In addition, The Boulevard may terminate the Agreement one (1) business day following providing Client with notice that it is delinquent late in fees due and payable. The Boulevard may terminate this Agreement upon written notice that of inability to provide The BoulevardServices due to unavailability of third-party licenses or services or other causes outside reasonable control, or if it discontinues The Boulevard Services. Generally, if that occurs, The Boulevard will provide a prorated refund of prepaid fees for the period affected by its termination.
4.3. Effect of Termination; Survival. Upon expiration or termination of the Agreement for any reason, all outstanding fees are immediately due and payable, Client’s subscription for The Boulevard Services will automatically terminate, and Client is compelled to immediately cease using the same. Sections 3, 4.2, 5 (to the extent of any outstanding payment obligations), 6.3, 7, 8, 9, 10, 11, and 12 survive expiration or termination of this Agreement.
5. INTELLECTUAL PROPERTY, DATA, AND SECURITY
5.1. The Boulevard Intellectual Property. As between The Boulevard and Client, The Boulevard is and will remain the sole owner of The Boulevard Services and all software and technologies embodied in or used to provide The BoulevardServices, including The Boulevard Platform and the Platform Generated Data, and all Intellectual Property Rights therein or relating thereto. The Boulevard reserves all rights in the foregoing other than the limited, non-exclusive license and access rights expressly granted to Client in this Agreement. Where Client provides any suggestions or other feedback in relation to The Boulevard’s products and services, The Boulevard will be free to use (or not use) the same without restriction and without any compensation or other obligations to Client.
5.2. Client Data. The Boulevard acknowledges and agrees that, as between Client and The Boulevard, all worldwide right, title and interest in and to the Client Data is and shall remain the exclusive property of Client, subject only to the rights expressly granted to The Boulevard under this Agreement. The parties acknowledge and agree that The Boulevard will transmit, store, and otherwise process the Client only as a data processor, and not as a data controller.
5.3. Security Measures. The Boulevard will employ reasonable and appropriate (and all legally mandated) environmental, safety and facility procedures, data security and backup procedures, and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of Client Data as stored or otherwise processed by The BoulevardServices.
5.4. Client Security Measures. Client agrees to limit access of The Boulevard Services only to those Authorized Users who have a need to know the output of the same as a part of their official duties. Client must immediately deactivate (or notify us to deactivate) the access credentials of any User who has been terminated or who no longer has a need to know or who is otherwise deemed an Unauthorized User. Client shall ensure that its Users (a) remain Authorized; (b) keep their access credentials secure; and (c) that individual credentials are assigned to and known by no more than one Authorized User. Client shall take reasonable and appropriate (and all legally mandated) measures to prevent unauthorized physical or electronic access to The Boulevard Services by any unauthorized persons, and to prevent any unlawful access to or use of its Data. Such measures will include appropriate data destruction policies where applicable.
6.1. Obligations. “Confidential Information” means any information that a disclosing party treats in a confidential manner and that is marked “confidential” prior to disclosure to, or that reasonable should be considered confidential information. Confidential information includes non-public information relating to or disclosed either in connection with this Agreement or as otherwise designated as confidential or which should be reasonably understood to be confidential (including pricing). Each party to this Agreement will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under this Agreement. Notwithstanding the foregoing, a receiving party may disclose the Confidential Information (a) its employees, contractors, subcontractors, or agents, including employees, agents, contractors or subcontractors of subcontractors, with a need to know such information, provided that each such person is under a duty of nondisclosure that is consistent with the confidentiality and nondisclosure provisions herein, and (b) to the extent the receiving party is legally compelled to disclose such Confidential Information, provided that the receiving party shall give advance written of such compelled disclosure and cooperate with any efforts to prevent or limit the scope of such disclosure or use of the Confidential Information. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
6.2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section.
6.3. Remedies. The parties recognize that Confidential Information is special, unique, extraordinary and intellectual in character, and with peculiar value, the loss of which may not be reasonably or adequately compensated in damages in any action at law and that a breach of this Section 8 may cause irreparable injury and damage. In addition to any other remedies in equity or at law, the disclosing party will be entitled to seek the remedies of injunction, specific performance and other equitable relief to prevent a breach of this Section 8 by the receiving party without the necessity of proving damages.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BOULEVARD SERVICES AND ANY RELATED MATERIALS OR SERVICES FURNISHED PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. THE BOULEVARD DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.1. The Boulevard will defend and indemnify the Client against claims, demands, suits or proceedings made or brought by a third party (“Claims”), but only to the extent that such claims, demands, suits or proceedings are founded on allegations that The Boulevard Services, as furnished by The Boulevardhereunder and used by Client within the scope of this Agreement, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF THE BOULEVARD WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE BOULEVARD SERVICES. The Boulevard will have no liability under this Section to the extent that such Claims are based on any combination of The Boulevard Services with products, services, methods, content or other elements not furnished by The Boulevard or otherwise approved by The Boulevard, or any use of The Boulevard Services in a manner that violates this Agreement or other applicable documentation.
8.2. Mitigation Measures. In the event of any Claim or potential Claim, The Boulevard may, in its discretion, seek to mitigate the impact of such Claim by modifying The Boulevard Services to avoid the infringement, and/or by suspending or terminating Client access to The Boulevard Services upon reasonable notice (provided, in the case of such suspension or termination, that The Boulevard will refund a portion of any fees that Client prepaid for the then-current subscription period, based on the portion of that subscription period that is affected by The Boulevard’s suspension or termination).
8.3. By Client. Client will defend and indemnify The Boulevard, its employees, agents, contractors and subcontractors, together with the employees, agents, contractors and subcontractors of a subcontractor, against any Claims, allegations, litigation, causes of action, liens and suites which (i) arising from or are related to violation or breach of this Agreement, or (ii) are based upon an allegation that Client Data, delivered to The Boulevard by Client, when used as permitted hereunder, infringes any copyright, trademark, wordmark, or other intellectual property, including but not limited to, any jurisdictional patent or trademark rights of any third party.
8.4. Procedures. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
9. LIMITATION OF LIABILITY
9.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BOULEVARD AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, (COLLECTIVELY, THE “THE BOULEVARD ENTITIES”) WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE BOULEVARDWILL NOT BE LIABLE FOR EXPENSE OR DAMAGE ARISING OUT OF ANY ERASURE, DAMAGE OR DESTRUCTION OF CLIENT DATA. CLIENT SHALL BE RESPONSIBLE FOR MAKING BACKUP COPIES OF CLIENT DATA.
9.2. Liability Cap. THE CUMULATIVE LIABILITY OF THE BOULEVARD ENTITIES FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR SERVICES TO BE PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO THE BOULEVARD UNDER AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
10.1. Publicity. The Boulevard may identify Client, by name and by logo, as a Client of The Boulevard Services on The Boulevard’s website and other marketing and investor materials. Otherwise, neither party will issue any press release or other public communications regarding the parties’ relationship under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld.
10.2. Assignment. Client may not assign the Agreement, in whole or in part, without the prior written consent of The Boulevard, and any attempt to assign the Agreement without such consent will be null and of no effect. The Boulevard may assign the Agreement to any affiliate or successor or acquirer of its business, rights or assets associated with The BoulevardServices. Subject to the foregoing, the Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.3. Force Majeure. Neither party shall be liable for delay or failure in performance (other than non-payment of amounts owing) due to causes beyond reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation or the like, so long as such party makes every reasonable effort to perform as circumstances permit.
10.4. Client Rights if the Client is the US Government. If Client is the U.S. government or any agency or other division thereof, The Boulevard’s software and services are furnished under Agreement as “commercial items,” and more specifically as “commercial computer software” and “commercial computer software documentation” (as applicable), as those terms are defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to such software and services (and to any associated technical data or other materials) are limited to those rights expressly granted in this Agreement.
10.5. Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, its remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
10.6. Waiver. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
10.7. Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in forwarded by overnight courier or express mail delivery service, postage prepaid, to the address of the party specified or to such other address as either party may specify by notice as described above. Notices will be deemed to have been given upon receipt.
10.8. Governing Law. The Agreement will be governed by both the substantive and procedural laws of Delaware, excluding its conflict of law rules. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the state of Delaware, Kent County.
10.9. Revisions to Agreement. Revisions to this Agreement will be in writing and any such changes in terms and conditions of this Agreement will take effect upon Renewal if Client has not otherwise informed The Boulevard of its intent of non-renewal.
10.10. Entire Agreement. Except as provided, any amendment or modification to the Agreement must be in writing signed by both parties. The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.