TERMS OF SERVICE
Last Updated: September 6th, 2016
BY CREATING A BOOSTINSIDER ACCOUNT OR OTHERWISE ACCESSING OR USING Boostinsider SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. PLEASE READ THESE TERMS OF SERVICE CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS OR USE Boostinsider SERVICES.
THESE TERMS OF SERVICE CONTAIN IMPORTANT TERMS AND CONDITIONS THAT AFFECT YOU AND YOUR USE OF THE SERVICES, INCLUDING A PROVISION REGARDING BINDING ARBITRATION (SECTION 16).
These Terms of Service (“Terms”) apply to your access to, and use of, any services provided by Boostinsider Inc., (“Boostinsider,” “we,” “us” or “our”), including but not limited to Boostinsider’s website and online services (collectively, the “Services”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with Boostinsider for products, services or otherwise. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to Boostinsider if you violate these Terms.
Boostinsider reserves the right to change or modify these Terms at any time and in its sole discretion. If Boostinsider makes changes to these Terms, Boostinsider will provide you with notice of such changes, for example, by sending an email notification to the email address you provided and/or providing notice through the Services. Your continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the Services.
If you have any questions or concerns regarding these Terms or the Services, please contact Boostinsider at firstname.lastname@example.org.
The Services are not intended to be accessed or used by anyone under the age of 13, and anyone under the age of 13 is strictly prohibited from accessing and using the Services. You represent and warrant that you (a) are at least 13 years of age, (b) have not previously been suspended or removed from using the Services; (c) have full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party; (d) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (e) are not identified as a “Specially Designated National;” (f) are not placed on the US Commerce Department’s Denied Persons List; and (g) will not use the Services if the laws of your country prohibit you from doing so in accordance with these Terms. If you are between the ages of 13 and the age of majority in your jurisdiction of residence, you represent and warrant that your parent or legal guardian agrees to be bound by these Terms and to be responsible for your use of the Services.
- Registration and Account
To access and use the Services, you will be required to register for an account (“Account”). By creating an Account, you agree to: (a) provide accurate, current and complete Account information; (b) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your Account; and (c) promptly notify Boostinsider at email@example.com if you discover or otherwise suspect any security breaches related to your Account or the Services.
- Advertisers and Influencers
Our Services connect advertisers (“Advertisers”) that are interested in having their products and services promoted with influencers (“Influencers”) that able to promote those products and services via third-party websites or online services (“External Sites”). “External Sites” include Advertiser’s website and third-party social media services. To facilitate Influencers’ promotional efforts and to track the success of each Influencer, the Services generate a Web address for each Campaign (as defined below) that is unique to each Influencer (“Custom URL”). Influencers may post Custom URLs via External Sites and receive compensation based upon (i) an applicable cost-per-click rate multiplied by the total number of valid Custom URL clicks, (ii) an applicable cost-per-install of a mobile application of other software multiplied by the total number of valid installations or (iii) any other method for calculating compensation agreed to between an Influencer and Boostinsider.
As a user of Boostinsider Services, you are either an Advertiser or an Influencer. Section 4.1 provides additional terms applicable to Advertisers and Section 4.2 provides additional terms applicable to Influencers. All other sections of these Terms apply to both Advertisers and Influencers.
4.1. Additional Terms for Advertisers
- Creation of Campaigns. Advertisers may create one or more advertising campaigns via the Services (each, a “Campaign”) to be promoted by Influencers. Boostinsider reserves the right to reject any Campaign or terminate an existing Campaign, in whole or in part, in Boostinsider’s complete discretion. Boostinsider is under no obligation to assign your Campaign to Influencers and provides no guarantees as to whether or not any Campaign will be promoted by Influencers. You are solely responsible for all Campaigns, including, without limitation, any products or services advertised via the Campaigns and any public disclosures that Influencers must provide when promoting Campaigns to ensure that Campaigns are not false or misleading.
- Advertiser Content. You are solely responsible for all content which you provide or otherwise make available to Boostinsider and/or Influencers via the Services, including but not limited to any text, graphics or images, video, URLs, or any other material (“Advertiser Content”). You grant Boostinsider a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, transferrable and fully sublicensable (including through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Advertiser Content on the Services. You grant each Influencer assigned to your Campaigns a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, transferrable and fully sublicensable (including through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Advertiser Content on External Sites in connection with your Campaign. You represent and warrant that (i) you have all rights, approvals, licenses, consents and permissions as are necessary to grant the licenses granted by you under these Terms, and (ii) the Advertiser Content does not, and shall not, infringe, violate or misappropriate any copyright, trademark, patent or any other right of any third party.
- Fees. You shall pay Boostinsider all fees payable to Influencers assigned to your Campaign via the Services (“Influencer Fees”). Influencer Fees will be agreed to between you and Boostinsider, and Influencer Fees may be calculated based on (i) the total number of Custom URL clicks generated by such Influencers multiplied by the applicable cost-per-click rates, (ii) the total number of valid installations generated by such Influencers multiplied by the applicable cost-per-install rates or (iii) any other method for calculating compensation agreed to between an Influencer and Boostinsider. Boostinsider also reserves the right to charge fees payable to Boostinsider in connection with any of your Campaigns (“Boostinsider Fees”), which will be disclosed via the Services at the time of any Campaign creation. You must pay all applicable Influencer Fees and Boostinsider Fees identified via the Services (collectively, “Fees”). You are responsible for any type of use or sales tax, duty or other governmental tax or fee due with respect to your use of the Services, including any payments you make to Influencers. All payments of Fees shall be made without deduction for withholding taxes.
- Payment of Fees. Only valid credit cards or other payment methods acceptable to Boostinsider may be used to pay Fees. You represent and warrant that you are authorized to use any payment method designated by you via the Services (“Payment Method”) and authorize Boostinsider, or its designated payment processor, to charge or debit such Payment Method for any applicable Fees. If the Payment Method cannot be verified, is invalid or is otherwise not acceptable to us, or Boostinsider’s designated payment processor, your ability to use the Services may be suspended immediately. You must resolve any problem Boostinsider, or Boostinsider’s designated payment processor, encounters to continue using the Services. You authorize Boostinsider, or its designated payment processor, to charge applicable Fees to your designated Payment Method and to process and store your Payment Method information. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Boostinsider pursues collection efforts against you due to your failure to pay Fees, you shall pay Boostinsider’s reasonable costs of collection, including any attorneys’ fees related thereto.
- Cancellation. If you cancel a Campaign (including if your Account is terminated by Boostinsider), you will remain liable for any applicable Fees accrued until such Campaign is deactivated via the Services.
- Influencer Content. You may have the right to use content or material posted by Influencers on External Sites provided such use is in accordance with any terms and conditions applicable to such External Sites. Boostinsider does not represent or warrant that you will have the right or authority to use such content or material.
4.2. Additional Terms for Influencers
- Assignment of Campaigns. Boostinsider will seek to assign Campaigns to you based on interests you have identified via the Services. Boostinsider is under no obligation to assign you any Campaigns and has the right as to which Campaigns will be assigned to you (if any) based on the Advertiser’s requirements and demand. You also have discretion as to whether or not to accept each Campaign. When you accept a Campaign, if applicable, Boostinsider may issue you with one or more Custom URLs which will enable you to receive payments from Advertisers in exchange for generating valid clicks or installations by third parties upon that Custom URL. If a Campaign is cancelled by an Advertiser or Boostinsider after you have been issued a Custom URL, you will have no right to receive payment for any clicks or installations generated following such cancellation.
- Campaign Promotion. Subject to your compliance with these Terms (including Section 5.2 below), Boostinsider hereby grants you a limited, revocable, nonexclusive, non-transferable, and non-sublicensable license to distribute any Custom URL via External Sites solely for the purpose of promoting the applicable Advertiser product and service. When posting any Custom URL or otherwise promoting any Campaign, you shall: (i) always include promotional and/or explanatory content relevant to the Campaign as provided via the Services pursuant to the Advertiser’s request; (ii) comply with any additional terms and conditions, and/or promotional and branding guidelines provided by the Advertiser; (iii) comply with all terms and conditions applicable to External Sites; and (iv) clearly disclose in all Influencer Content (as defined below) that you have been provided compensation and, if applicable, a free copy of or access to a product or service, in exchange for posting the Influencer Content. Without limiting the foregoing, you represent and warrant that your Influencer Content will fully comply with the applicable law and the FTC’s Guide Concerning the Use of Endorsements and Testimonials in Marketing, (16 C.F.R. Part 255) as amended.
- Valid Clicks and Installations. If your compensation is based Custom URL clicks or installations, you are eligible to receive payments only for unique, non-automated, voluntary clicks and installations by third parties for each of your Custom URLs. Without limiting the generality of the foregoing, you are prohibited from:
- compensating any other person or party in exchange for their click on any of your Custom URLs, including, without limitation, by providing monetary compensation or agreeing to perform certain actions in exchange for a click on your Custom URL;
- engaging in any Fraud (defined below);
iii. purchasing or otherwise obtaining any Advertiser product or service with the intent to return such product or service; and
- encouraging, incentivizing or authorizing any third party to engage in, any of the foregoing activities.
“Fraud” occurs when a person, automated script or computer program imitates a legitimate internet user by clicking on or downloading from an advertising link for malicious and/or fraudulent purposes (including, but not limited to, by way of repeated manual clicks or installations, the use of robots or other automated query tools, or computer generated search requests). Boostinsider reserves the right to immediately suspend or terminate your Account in the event that you violate this Section. You will not receive any payment for clicks and installations which Boostinsider determines, in its sole discretion, were the result of any violation of this Section or any other provision in these Terms. Boostinsider reserves the right to calculate, in its sole discretion, whether any Custom URL clicks and installations are valid and therefore eligible for compensation.
- Influencer Content. Boostinsider shall not control the manner or means by which you promote any Campaign, including but not limited to the time and place you promote the Campaign. You are solely responsible for all content or other material that you post via any External Sites in conjunction with any Campaign (“Influencer Content”). You shall furnish, at your own expense, the equipment, supplies, and other materials used to promote any Campaign. You are solely responsible for any travel or other costs or expenses incurred by you in connection with promoting any Campaign, and in no event shall Boostinsider reimburse you for any such costs or expenses. You will not post Influencer Content which:
- is libelous, defamatory, profane, obscene, pornographic, sexually explicit, vulgar, harassing, offensive, discriminatory, fraudulent, deceptive or otherwise objectionable;
- is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national or international law;
iii. may infringe or violate any patent, trademark, trade secret, copyright, or other intellectual or other right of any party;
- impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; or
- reflects poorly on Boostinsider and/or an Advertiser, or otherwise disadvantages, disparages or devalues Boostinsider and/or an Advertiser.
In the event that Boostinsider, in its sole discretion, determines that you have violated any of the provisions in this Section and/or any other provision of these Terms, it may suspend and/or terminate your Account. In the event that your Account is terminated under this Section, you will forfeit all claims to any outstanding payments under these Terms. You grant Boostinsider a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, transferrable and fully sublicensable (including through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Influencer Content on the Services. You grant the applicable Advertiser a worldwide, non-exclusive, perpetual, irrevocable, transferrable and fully sublicensable (including through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Influencer Content in connection with the Advertiser’s Campaign. You represent and warrant that (i) you have all rights, approvals, licenses, consents and permissions as are necessary to grant the licenses granted by you under these Terms, and (ii) the Influencer Content does not, and shall not, infringe, violate or misappropriate any copyright, trademark, patent or any other right of any third party
- Advertiser Content. Your use of Advertiser Content may be subject to additional terms and conditions provided by the Advertisers. In the event that such terms and conditions conflict with the provisions of these Terms, these Terms will govern. Boostinsider has no responsibility or liability with respect to your access to or use of the Advertiser Content or any content or functionality contained in such Advertiser Content. Boostinsider shall not be responsible or liable for any Advertiser Content and makes not representations or warranties of any kind with respect to the Advertiser Content.
- Payment. Subject to your compliance with these Terms and contingent upon your satisfactory performance of services in connection with your promotion of Campaigns, you will receive payment of the fees agreed to between you and Boostinsider, some or all of which may be based on the number of valid Custom URL clicks and installations, calculated in Boostinsider’s sole discretion, and the applicable cost-per-click rate and cost-per-installation rate. You acknowledge and agree that any payment you are eligible to receive from Boostinsider is subject to Boostinsider’s receipt of applicable funds from the relevant Advertiser. Once your Account balance reaches a certain threshold, as described via Boostinsider’s Services, you will be able to receive payment via a payment method that is acceptable to Boostinsider and designated by you via the Services. You will be responsible for: (i) any fees charged by your designated payment method in connection with your receipt of payment via the Services; and (ii) any type of use or sales tax, duty or other governmental tax or fee due. You acknowledge and agree that Boostinsider may withhold payment of any compensation to you if Boostinsider believes, in its sole discretion, that any such compensation was obtained in violation of these Terms.
- Important Tax Information. You agree to provide Boostinsider with a correct Taxpayer Identification Number and certain other information on an IRS Form W-9 or an appropriate IRS Form W-8. You acknowledge and agree that Boostinsider may withhold payment of any compensation to you if Boostinsider believes, in Boostinsider’s sole discretion, that any such withholding is required by applicable law. You agree to indemnify and hold harmless Boostinsider for (i) all withholding taxes (including penalties and interest arising from amounts not withheld pursuant to the representations and warranties made by you or on your behalf) in connection with any compensation paid to you pursuant to these Terms and (ii) any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Boostinsider as a result of any inaccuracy in the information provided by you or on your behalf. You should consult your own tax advisor with respect to IRS Form W-9 or IRS Form W-8 and the tax consequences of any payment received pursuant to these Terms.
- Samples. As part of the Services, from time to time, Boostinsider may provide you with complimentary samples of products or services relating to Advertisers (“Samples”). In the case of digital content, this may include software licenses or access codes. You agree to comply with all additional terms and conditions applicable to such Samples. You hereby acknowledge that Boostinsider will have no liability in relation to Samples. If you receive any Samples but decide not to promote the applicable Campaign, you must return such Samples to us, or, if you received digital Samples, immediately destroy and discontinue using such Samples.
- License; License Restrictions
5.1 License. Other than Advertiser Content and Influencer Content, the Services and all content and other materials made available therein including, without limitation, the Boostinsider logo, and all other designs, text, graphics, pictures, information, data, software, sound files, other files made available via the Services and the selection and arrangement thereof (collectively, “Boostinsider Materials”) are the proprietary property of Boostinsider or its licensors and suppliers and are protected by U.S. and international copyright laws. Subject to your compliance with these Terms, Boostinsider hereby grants you a limited, nonexclusive, revocable, non-transferable, and non-sublicensable license to access and use the Boostinsider Materials via the Services.
5.2 License Restrictions. Except as otherwise expressly permitted in these Terms or via the Services, you will not: (a) sell, rent, lease, lend, redistribute, or sublicense any Boostinsider Materials; (b) copy, reverse engineer, decompile, disassemble or attempt to discover the source code of any Boostinsider Materials; (c) modify, alter or otherwise make any derivative uses of any of the Boostinsider Materials; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice included in the Boostinsider Materials; (e) use any data mining, robots or similar data gathering or extraction methods; (f) download (other than the page caching) any portion of the Boostinsider Materials; and (g) use the Boostinsider Materials other than for their intended purposes. Any use of the Boostinsider Materials other than as specifically authorized herein, without the prior written permission of Boostinsider, is strictly prohibited and will terminate the license granted in this section. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by Boostinsider, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
- Acceptable Use
You will comply with all applicable laws, regulations, guidance and codes of practice in relation to your use of the Services. You will not: (a) access or use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit anyone from fully enjoying the Services; (b) damage, disable, overburden or impair the functionality of the Services in any manner; (c) access or use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms or any other terms or polices provided in connection with the Services; (d) use or attempt to use another user’s account without authorization from such user; (e) modify, adapt, hack or emulate the Services; (f) use any robot, spider, crawler, scraper or other automated means or interface not provided or authorized by Boostinsider to access the Services or to extract data; (g) circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services or third-parties; and/or (h) infringe upon or violate the rights of Boostinsider, its users or any third party.
“Boostinsider” and any other trademarks, service marks, logos, trade names or other proprietary designations of Boostinsider are trademarks or registered trademarks of Boostinsider and may not be copied, imitated or used, in whole or in part, without the prior written permission of Boostinsider. All other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners and may not be used without permission of the applicable trademark holder.
- Termination or Modification of Services
Boostinsider reserves the right to change, suspend, remove, discontinue or disable access to all or part of the Services at any time and without notice. In no event will Boostinsider be liable for the removal of or disabling of access to any portion or feature of the Services.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Boostinsider and Boostinsider’s Services (collectively, “Feedback”). Boostinsider shall own, and you hereby assign to Boostinsider, all right, title and interest, including all intellectual property rights, in and to such Feedback. Boostinsider shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Intellectual Property Infringement
Boostinsider respects the intellectual property rights of others, and Boostinsider asks you to do the same. Boostinsider may, in appropriate circumstances and at its discretion, terminate access to its Service for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on the Service, please provide Boostinsider’s designated agent the following information:
- A 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 and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site, and the date and time of the commission of the claimed infringement.
- 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 on the Service, and information reasonably sufficient to permit Boostinsider to locate the material.
- A description of your interests or rights in or to the work claimed to have been infringed.
- Information reasonably sufficient to permit Boostinsider to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Boostinsider’s agent for notice of claims of copyright or trademark infringement on the Service can be reached as follows:
1633 Bayshore Hwy
Burlingame CA 94010
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
Boostinsider will notify you that Boostinsider has removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that Boostinsider have received. If you receive such notice from Boostinsider, you may provide Boostinsider with a counter-notification in writing to Boostinsider designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Boostinsider may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
Boostinsider reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
- Third-Party Content
The Services may contain links to third-party websites, applications or other third-party services, and you understand and agree that Boostinsider is not responsible or liable for the availability or accuracy of such third-party properties or the content, products or services made available through such properties. Boostinsider does not endorse or control such third-party properties and Boostinsider makes no representations or warranties of any kind regarding such properties. If you access or use any third-party properties, you should also be aware that such third parties’ terms and policies will govern.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. AS BETWEEN YOU AND BOOSTINSIDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND BOOSTINSIDER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BOOSTINSIDER DOES NOT REPRESENT OR WARRANT THAT: (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY BOOSTINSIDER WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Boostinsider and its independent contractors and service providers, and each of their respective directors, officers, employees and agents (collectively, “Boostinsider Parties”) from and against all third party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) caused by, arising out of or related to (a) your use of, or inability to use, the Services; (b) your violation of these Terms or any applicable law or any rights of any third party; or (c) any content (including Advertiser Content and Influencer Content) or Feedback you provide.
- Limitation of Liability
- IN NO EVENT WILL BOOSTINSIDER PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BOOSTINSIDER PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED (I) IF YOU ARE AN ADVERTISER, THE TOTAL FEES YOU PAID VIA THE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY; OR (II) IF YOU ARE AN INFLUENCER, THE TOTAL PAYMENTS YOU RECEIVED VIA THE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
- THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
In the event that you have a dispute with any other users of Boostinsider’s Services (whether Advertisers or Influencers) or any other third party, you release the Boostinsider Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes or any interactions you may have with such users. If you are a California resident, you waive any and all rights granted to you pursuant to California Civil Code § 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BOOSTINSIDER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BOOSTINSIDER.
You and Boostinsider agree that any dispute, claim or controversy arising from or relating to these Terms (including the breach, termination, enforcement, arbitrability, interpretation, or validity hereof) or your use of the Services, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act, 9 U.S.C §§ 1 et seq. (“FAA”), except for claims for which arbitration is unavailable as a matter of law. Notwithstanding the above, you and Boostinsider are not required to arbitrate any dispute in which either party seeks equitable, injunctive and/or provisional relief pending the outcome of arbitration, including that for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents, or other intellectual property rights. You and Boostinsider further agree that the arbitrability of any dispute between the parties, including whether or to what extent the arbitration agreement is unconscionable or otherwise unenforceable, is a decision that will be submitted exclusively to the arbitrator, and will not be decided by any federal or state court. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. By agreeing to binding arbitration as provided herein, each party waives his/her/its right to have any dispute, claim or controversy arising out of or relating to these Terms or your use of the Services decided in court by a judge or jury. You and Boostinsider agree: (a) that any arbitration will occur in San Mateo County, California; and (b) that arbitration will be conducted confidentially by a single arbitrator in accordance with the provisions of JAMS’ Comprehensive Arbitration Rules and Procedures (the "JAMS Rules") as in effect at the time of submission. The JAMS Rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/.
All disputes, claims or controversies to be arbitrated in accordance with this Section shall be submitted in writing within the time period of limitations applicable to the claim(s) involved. The written submission shall state with specificity the issues to be submitted to arbitration and the relief sought. Copies of the submission and demand for arbitration shall be served by registered mail on the other party to the dispute and simultaneously upon the local office of JAMS. Copies to be served on Boostinsider must be addressed to: 1633 Bayshore Hwy, Burlingame, CA94010. The parties shall use one arbitrator for each case, who will be selected under the applicable rules of JAMS. The arbitrator will have the authority to consider and grant motions resolving all or part of any claim, using the standards under the Federal Rules of Civil Procedure; this includes motions to dismiss if the claim is untimely under the applicable law and/or motions for summary judgment. The arbitrator will also have the authority to allow discovery in accordance with the applicable JAMS rules. The arbitrator will require the parties to identify their witnesses and exhibits in advance of any evidentiary hearing; will permit cross-examination of each witness presented; and will allow for post-hearing briefs if requested by either party. The arbitrator will have the authority to award relief on the same basis as in court: i.e., damages permitted by the applicable statutory or common law that is the subject of the claim, provided that the arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator will render an award in writing, setting forth the reasons supporting his/her decision. That decision will be final and binding, except for any appeal permitted by the FAA.
The costs and fees of JAMS and of the arbitrator shall be borne equally by the parties to the dispute, claim, or controversy.
You and Boostinsider also knowingly and voluntarily agree that there shall be no class actions, collective actions, representative actions or multiple-individual claims of any kind. YOU AND BOOSTINSIDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT PERMITTED BY LAW. To the extent a class, collective or representative claim may not be waived, you and Boostinsider agree to stay any such claims until after all claims subject to arbitration are fully resolved. Further, unless both you and Boostinsider agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative, collective or class proceeding.
- Governing Law; Venue
Boostinsider is based in the United States and its Services are subject to U.S. law. Boostinsider makes no representations or warranties that the Services are appropriate or available for use in other locations.
The laws of the State of California, excluding its conflicts of law rules, govern your access to and use of the Services. To the extent the arbitration provision in Section 16 does not apply, you further agree that all disputes arising under these Terms will be resolved exclusively in the state courts in San Mateo County, California and the United States District Court for the Northern District of California, and you agree to submit to the personal jurisdiction of such courts for the purposes of litigating all such claims.
Boostinsider reserves the right to terminate your right to access and use the Services if you violate these Terms or any other terms or policies referenced herein, or if you otherwise create risk or possible legal exposure for us. You may terminate your Account with Boostinsider at any time by contacting Boostinsider at firstname.lastname@example.org. If you are an Advertiser, upon termination for whatever reason, any outstanding Fees in relation to your Campaign(s) will be immediately due and payable.
- Independent Relationship
Your use of the Services, and any payments you make or receive via the Services, does not create any agency, partnership, joint venture, or employment relationship between you and Boostinsider.
If you are an Influencer, your relationship with Boostinsider is that of an independent contractor. You will not be entitled to any of the benefits that Boostinsider may make available to its employees, including, but not limited to, group health or life insurance, profitsharing or retirement benefits. You are not authorized to bind Boostinsider or make any representation, contract or commitment on behalf of Boostinsider unless specifically requested or authorized in writing to do so by Boostinsider. Boostinsider will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker's compensation insurance on your behalf. You are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of payments under these Terms. You are solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under these Terms. Boostinsider will regularly report amounts paid to you by filing Form 1099MISC with the Internal Revenue Service as required by law. Any persons employed by you in connection with the performance of services under these Terms shall be your employees and you shall be fully responsible for them.
If you are an Influencer, you may be engaged or employed in any other business, trade, profession or other activity while providing services under These Terms, provided that you comply with all applicable provisions of these Terms.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
You may not assign these Terms or any of the rights granted hereunder without the prior written consent of Boostinsider, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by Boostinsider and its respective successors and assigns.
Any failure by Boostinsider to insist upon or enforce performance by you of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
The termination of the Terms for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the provisions concerning ownership, limitation on liability, indemnity and the warranty disclaimers).