Put More Simply

1. Welcome and General Terms

Before we make this official and live happily ever after, please carefully review this Main Services Agreement (MSA). Once accepted, this MSA becomes a binding legal commitment between you and Boulevard, defining the rights, remedies, and obligations of both Parties in relation to Boulevard Services. Only the terms to the right are legally binding, not these short summaries. 

As our Services evolve to better serve you, we may update this MSA. We’ll notify you if any of those updates are significant. If you keep using our services after those changes, you accept the changes as legally binding.

For your reference, here are a few terms that come up often in this MSA:

Boulevard Services: All the services, products, features and functionality that we offer. The Services you have access to depends on the Services you've ordered. 

Order: In most cases, you'll be presented an order form or proposal to sign. But you may also activate or opt-into Services on our Platform in different ways. Each of these is an Order.

Boulevard Platform: You access our Services through our Platform - which include our websites, apps, and other offerings.

Clients: Your customers who access our Services and/or Platform

Users: Your employees, contractors, Affiliates, Franchisees, and other individuals who you authorize to access our Services.

‎Welcome to Boulevard! We provide technology that empowers appointment-based, self-care businesses to provide their clients with the magical moments that matter the most (our “Services”).

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We hope that you will carefully read through this Main Services Agreement (this “MSA”) since it is a legally binding contract between you (the “Customer” or “you”) and Boulevard Labs, Inc. (“Boulevard” or “we”) with essential details about your legal rights, remedies, and obligations regarding your access and use of our Services. (You and Boulevard are sometimes referred to as a “Party,” and together as the “Parties” in this MSA).

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Please note that we may modify this MSA as described in Section 9.11 below, so check this page regularly. On the left, we’ve summarized this “legalese” in plain language. This summary is not legally binding; consult the MSA text on the right for questions of legal interpretation.

This section outlines the services provided by Boulevard. These services are intended for business or professional use only. Our payment processing services won't start until we've approved your merchant account application.

1.1. Our Services

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Our Services include (i) our websites, apps, and other Boulevard offerings through which you can access our Services (our “Platform”); (ii) the proprietary technology and software programs including all modifications, updates, and enhanced versions of such software utilized by Boulevard to provide the Services (our “Software”); and (iii) all features and functionality that are purchased by you as part of an Order (as defined below) and made available through our Services, such as our technical support and Software maintenances services (“Support Services”), merchant payment processing services (“Payment Processing Services”), and professional services like our implementation services, data migration services, consulting or advisory services, and custom development services (“Professional Services”). Our Services are for business use only or for individuals’ professional purposes.

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NOTE: As described in Section 2.2.2, any Order for our Payment Processing Services by Customer must first be approved by Boulevard and those services will not commence until the mutually agreed upon Payment Processing Start Date.

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Nothing in this MSA will prohibit, restrict or limit Boulevard from performing the same or similar Services, including our Professional Services, for other third parties, including other Customers.

When you sign an Order or access our Services, you accept this MSA, effective on the date of acceptance. By doing so, you’re confirming that you have the authority to make these commitments on behalf of your organization.

Our Privacy Policy, Acceptable Use Policy, Payment Terms, API License Terms, Professional Services Terms, Hardware Agreement, Service Level Addendum, and Data Privacy Addendum are also part of this MSA (Supplemental Terms). Taken together with any Order, this MSA and these Supplemental Terms make up the entire Agreement between us.

1.2. Our Agreement with You and Yours

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By signing an order form or proposal, ordering Services through the Platform, clicking to accept this MSA, receiving a confirmation email, otherwise activating or opting-into the Services, or any renewal thereof (each, an “Order”), you agree to all of the MSA terms. By signing an Order, an Affiliate (as defined in Section 9.1) agrees to be bound by the terms of this Agreement as if it were an original party hereto.

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This MSA is effective as of the date you accept or otherwise agree to an Order (the “Effective Date”). If you have a separate written agreement with Boulevard for your use of our Services, this MSA will not apply unless that agreement does not cover a particular Service. In that case, this MSA only applies to your use of that particular Service.

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We maintain additional terms and policies that supplement this MSA, like our Privacy Policy, which describes our collection and use of personal information, our Acceptable Use Policy, which governs your use of our Services; our Payment Processing Terms, which govern all Payment Processing Services Boulevard provides to Customers; our API License Terms, which govern your access and use of the Boulevard APIs; our Professional Services Terms, which govern the Professional Services we provide to you in connection with Boulevard Services; our Hardware Agreement, which governs your purchase and use of our payment-enabling hardware; our Support Agreement, which describes your applicable Support Services; and our Service Level Addendum and Data Privacy Addendum (collectively, the “Supplemental Terms”). The Supplemental Terms are hereby incorporated into this MSA by reference as if fully set forth herein. The MSA, any applicable Order, and the Supplemental Terms make up the “Agreement” between you and Boulevard. 

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If you are using Boulevard Services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement, including your employees, independent contractors, service providers, Affiliates and Franchisees (as defined in Section 9.1), and other individuals or entities who you authorize to access our Services on behalf of Customer (collectively, your “Users,” who are bound by this Agreement as an original Party thereto). You represent and warrant that you have the legal power and authority to enter this Agreement and that if Customer is an entity, this MSA is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. 

You and the rest of our customers are #1 in our hearts, but this MSA does not create any special relationship between us, like an employer-employee, joint venture, or partnership. Each of us is responsible for our own conduct and that of our employees and agents.

1.3. Our Relationship

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Your relationship with Boulevard is that of a customer and not an agent, joint venturer, employee, or partner of Boulevard. Neither Party has any authority to bind or otherwise obligate the other Party in any manner, and neither Party may represent to anyone that it has a right to do so. In particular, Boulevard does not direct or control your business or how you choose to use our Services, and you agree that you have complete discretion as to both. 

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2. Boulevard’s Services to You

We value transparency: We will make our services available to you according to our published documentation, our service level agreement, and applicable law. We will also protect your data and our services according to our Data Privacy Addendum.

2.1. Your Purchased Services, Generally

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Subject to your compliance with this Agreement, Boulevard will provide you access to the Services to which you have ordered. In particular, during the Term (defined below), Boulevard will: (i) provide the Services to you pursuant to this Agreement, including any applicable “Documentation” (which includes materials, guides, instructions, policies, and support articles made available by Boulevard to Customer, as may be updated by Boulevard from time to time); (ii) comply with the Boulevard’s Service Level Addendum (“SLA”); (iii) provide the Services in accordance with laws applicable to Boulevard’s provision of the Services to its customers generally (i.e., without regard for your particular use of the Services), subject to your use of the Services in accordance with this Agreement, the Supplemental Terms, any applicable Order, and any applicable Documentation; (iv) make commercially reasonable efforts to use industry-standard measures designed to scan, detect, and delete malicious code; (v) if applicable, use trained, qualified personnel to provide the Services; (vi) comply with Boulevard’s Data Privacy Addendum; and (vii) provide you with the applicable Support Services.

Additional Terms apply to certain Services if you choose to use them. Those Terms are part of our Agreement and apply to you. Please review them carefully.

2.2. Additional Services

2.2.1. Support Services.

As part of the Services you order, you will have access to the applicable Support Services. We provide Support Services according to our Support Agreement which is hereby incorporated into this Agreement by reference as if fully set forth herein. 

2.2.2. Payment Processing Services. Your request for Payment Processing Services must first be approved by Boulevard. Once approved, you and Boulevard will agree on a date to initiate the Payment Processing Services (the “Payment Processing Start Date”). Our Payment Processing Services incur an additional Fee and are subject to our Payment Proccesing Terms. 

2.2.3. Professional Services. Professional Services that you order are subject to our Professional Services Terms, which are hereby incorporated into this Agreement by reference as if fully set forth herein.

2.2.4. Hardware Terms. Additional terms specific to acquiring and using payment-enabling hardware and similar equipment (our “Hardware”) are subject to our Hardware Agreement and are hereby incorporated by reference into this Agreement as if fully set forth herein. 

2.2.5. API License Agreement. The API License Agreement governs your access to and use of the Boulevard APIs (as defined in that Agreement). You are solely responsible for the activity that occurs using your API Credentials and for keeping your API Credentials secure.

If you are a Covered Entity and subject to HIPAA, you have to let us know. If you are, you’ll be asked to complete a BAA, subscribe and use the applicable Services, and comply with any security Documentation. Unless you complete these steps, you don’t have permission to upload PHI or any HIPAA related data on our Platform.

2.2.6. HIPAA. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) imposes rules to protect certain protected health information or “PHI” as defined under HIPAA. If you or any Affiliate or Franchisee is subject to HIPAA (a “Covered Entity”) and providing or processing any “PHI” in connection with the Services, then prior to accessing or using the Services, you must (i) notify Boulevard, (ii) subscribe to and use the applicable Services, (iii) comply with any security configuration requirements provided by Boulevard in our Documentation, and (iv) enter into a Business Associate Agreement (“BAA”) with Boulevard in the form provided by Boulevard. Customer is solely responsible for determining whether Customer or its Affiliates or Franchisees are Covered Entities and/or subject to HIPAA and whether a BAA is necessary with Boulevard. Customer may send notice and request a BAA by emailing legal@blvd.co. Unless Customer has completed each of the requirements described above, Customer does not have permission to upload PHI or any HIPAA related data and Boulevard will have no liability under this Agreement in connection with  PHI or HIPAA related data, notwithstanding anything in this Agreement or in HIPAA. If you are permitted by Boulevard to submit PHI or HIPAA related data on the Boulevard Platform after completing the steps described above, then (i) you may submit such data only by uploading such data in the approved fields on the Boulevard Platform and (ii) you acknowledge that you are solely responsible for the appropriate use and disclosure of PHI or any HIPAA related data on the Boulevard Platform.    

Our Marketing Program empowers you to drive new business. However, we are not responsible for how you use our Marketing Program.

2.2.7. Marketing Program. We may make certain marketing or promotional features (“Marketing Program”) available to you through our Services for you to market to your customers who access and use our Platform to book and pay for the services and products that you offer (your “Clients”). The Marketing Program may include loyalty programs, memberships and subscriptions, special offers and promotions, discounts, rewards, and series/package options. Your use of the Marketing Program is subject to our Acceptable Use Policy. In particular, you acknowledge that you are solely responsible for (i) choosing which Marketing Program features to use, (ii) how you use such features, (iii) any Customer Data (as defined in Section 3.4) incorporated into the Marketing Program, (iv) any messaging to Clients as part of the Marketing Program, (v) providing all terms and conditions for the applicable Marketing Program features to your Clients, (vi) obtaining all necessary consent from your Clients before they participate in the Marketing Program, (vii) complying with all applicable law related to your use of the selected Marketing Program features, and (vii) all Clients’ use of the Marketing Program. For clarity, Boulevard does not represent or warrant that your use of the Marketing Program complies with applicable law, and Boulevard takes no responsibility for the legality of the offers you may make using the Marketing Program. All such responsibility and liability rests solely with you. 

Our wage and commission calculators are for your reference. You are responsible for your use of these features and the compensation of your staff.

2.2.8. Calculator Features. The Services provide certain commission and wage calculators. To the extent you use these features, you acknowledge sole responsibility for (i) the accuracy and completeness of any related information provided by you or your Users; (ii) complying with all applicable law, including labor and wage and hour law; (ii) verifying the accuracy of the calculations and any withholdings; (iv) maintaining employee and independent contractor records; and (v) paying commissions and wages.

We are always looking to innovate and improve our Services to better serve you. As such, our Services may change over time. We will inform you when we think a change will negatively impact your use of the Services, and we may also work with you to resolve certain significant negative impacts.

2.3. Changes to the Services

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Notwithstanding Section 2.1, you acknowledge that the features and functions of the Services may change over time; however, Boulevard has no obligation to update or enhance any Services or to produce or release new versions of any Services. We endeavor to make all updates or enhancements to existing Services backwards compatible. In addition, we try to avoid changes to the Services that materially impact your use of the Services, including the depreciation or removal of features (an “Adverse Change”). However, in the event Boulevard makes an Adverse Change, (i) we will notify you in advance within the Platform or by sending an email, and (ii) we will consult with you to resolve or otherwise address the Adverse Change, except where Boulevard, in its sole discretion, has determined that an Adverse Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.

Boulevard's Beta Offerings are limited-release Services provided for testing and experimentation purposes only. You are not required to use our Beta Offerings; if you do, we are not responsible for the results of using those offerings.

2.4. Beta Offerings

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From time to time, Boulevard may make available offerings that are not generally available, or are limited release, developer preview, or similar in order for you to provide Feedback (as defined below) (“Beta Offerings”). You may, in your sole discretion, choose to use a Beta Offering. Boulevard may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available. Beta Offerings are strictly for testing and experimentation purposes only. Customer acknowledges that, by their nature, Beta Offerings may (i) not meet performance benchmarks or expectations, (ii) have gaps in functionality, and (iii) contain bugs. The Support Agreement and Boulevard’s SLA do not apply to Beta Offerings. Any information related to Beta Offerings, including their existence, are considered Boulevard’s Confidential Information (as defined below). 

Certain third-party products and services may be integrated with or used in connection with our Services. While we do play nice with others, we do not endorse any third-party services and are not responsible for any issues related to their availability or use.

2.5. Third Party Services

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Our Services may allow you to access or use third party software, products, hardware, applications, websites, or services (“Third Party Services”). Third Party Services are not endorsed by Boulevard and are not subject to any of the warranties, service commitment, or other obligations we provide for our Services in this Agreement. Boulevard does not control or own any Third Party Services, and the access to and use of such Third Party Services, including the availability and uptimes related to such Third Party Services, is solely determined by the relevant third parties that control such Third Party Services and is at Customer’s sole risk. Boulevard has no obligation to monitor or maintain Third Party Services, and may disable or restrict access to any Third Party Service at any time. By using or enabling any Third Party Service, you are expressly permitting Boulevard to disclose Customer Data (as defined in Section 3.4) or other information to the extent necessary to utilize the Third Party Service. Boulevard shall not be responsible or liable for any downtime, discontinuation, data breaches, or any other issues with or caused by the Third Party Services that are outside Boulevard’s reasonable control. In order to access and use a Third Party Service, such third party may require that Customer enter into a separate agreement with such third party (“Third Party Agreement”) and may require additional consents in order to connect the Third Party Service to the Platform.

3. Customer Responsibilities

Here are a few “dos” and “don’ts” you must follow when using our Services:

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(a) You will use our Services according to this MSA, our Acceptable Use Policy and all other Supplemental Terms, and any applicable laws and regulations.

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(b) You will comply with your representations in Section 7 (“Representations by Customer”) below.

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(c) You’re responsible for all use of our Services under your Account.

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(d) You will prevent unauthorized access to or use of our service and must notify us immediately of any unauthorized activity or use.

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(e) In the event of unauthorized activity or use, you will cooperate to help prevent further unauthorized activity and to respond to information requests we receive relating to your use of our services.

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(f) You are responsible for your end users (Users and Clients), including all their activity. Your Users and Clients will be expected to follow all of these rules as well.

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(g) You are responsible for the accuracy and quality of the content and data you submit via our Platform and must ensure your collection and use of that data are in compliance with applicable laws.

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(h) You must notify us if you are subject to HIPAA and sign a BAA in the form provided by us.

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(i) You are responsible for acquiring and maintaining all necessary equipment for connecting to and using the Services, as well as assuming ownership and risk of loss for any hardware shipped to you.

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(j) Neither you nor anyone you’re responsible for in this Agreement will transfer, resell, or make available to third parties our Services (except to make the Services available to your Clients); reverse engineer the Services; use the Services for illegal or unauthorized purposes; make derivative works of our Services; or interfere or disrupt the integrity or performance of our Services; or attempt to gain access to the Services in a manner not permitted by this Agreement.

3.1. Your Responsibilities

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You will use the Services only in accordance with (i) this Agreement, including all applicable Supplemental Terms, including our Acceptable Use Policy (ii) any applicable law; (iii) your representations and warranties set forth in Section 7.1; and (iv) the Restrictions on Use (as described in Section 3.6). 

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In addition, you are solely responsible for (i) your access and use of the Platform and Services (as described further in Section 3.2); (ii) your Users’ and Clients’ access to and use of the Platform and Services (as described in Section 3.3.); (iii) your Customer Data (as defined in Section 3.4); and (iv) your implementation of the Services (as described in Section 3.5). 

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In addition, you agree to provide all required disclosures to your Clients and obtain all necessary rights, releases, and consents to allow the Boulevard Services to be used by Customer and accessed by your Clients, and to permit Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement. 

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3.2. Your Access and Use of the Platform and Services

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You are solely responsible for all use of the Services under your account (“Customer Account”). Specifically, Customer has sole responsibility for: (i) maintaining the security and control of its premises, equipment (including hardware and associated firmware), and systems; (ii) maintaining the security and access to your Customer Account, including User and Client passwords and access; (iii) all activity of its Users that occur under your Customer Account, whether authorized by Customer or not. User login access to Customer Accounts cannot be shared or used by more than one User.

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You are solely responsible for preventing unauthorized access to, or use of, the Services. You agree to (i) immediately notify Boulevard if you become aware of any unauthorized activity under your Customer Account or breach in the security of your access passwords; and (ii) to cooperate with Boulevard to (a) prevent any further unauthorized activity or security breaches and (b) respond to information requests from law enforcement, regulators, or telecommunications providers. In particular, you agree to not share Customer Account usernames or passwords with competitors of Boulevard. You acknowledge and agree that no adequate remedy at law may exist for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach, Boulevard will be entitled to suspend your access to and use of the Services, as well as seek immediate injunctive relief and other equitable relief, without waiving any other rights or remedies available to it.

3.3. Your Users and Clients Are your Responsibility 

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You are solely responsible for all use of the Services and access to the Platform by your (i) Users - that is, your employees, independent contractors, Affiliates, and other individuals and entities who you authorize to access our Services as defined in Section 1.2 -  and your (ii) Clients - that is, your customers that access and use the Services and Platform as defined in Section 2.2.6. Likewise, you are solely responsible for setting the appropriate access permissions and/or controls for all of your Users to Boulevard’s Platform and Services. Customer shall not permit any User or Client to use the Services except as expressly permitted under this Agreement. You must ensure that your Users and Clients comply with the relevant provisions of this Agreement, including any Supplemental Terms, and any applicable law, including those related to data privacy and transmission of personal information, at all times while using the Services. 

You will be held liable for any acts or omissions of your Users and Clients that do not comply with this Agreement, which will be deemed a breach of this Agreement by you. Your Clients will be required to agree to Boulevard's Client Terms of Service and other terms and conditions in their use of the Services.

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Boulevard does not intend to control or monitor Customer’s relationship with its Users or Clients or any Client experience; however, Boulevard reserves the right to suspend or otherwise terminate a User’s or Client’s access to the Platform or Services, as applicable, for usage that violates (or may violate) the Acceptable Use Policy or that otherwise appears unlawful. In addition, you are solely responsible for resolving disputes with your Users (including former Users) or Clients regarding the ownership, access, or processing of your Customer Data, and you acknowledge and agree that Boulevard has no obligation to resolve or intervene in such disputes.

3.4. Your Customer Data

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In order to use the Services and access the Platform, you and your Users and Clients will submit content, data, and information via the Platform (“Customer Data”). Customer Data may include, without limitation, personal information, business information, financial information, purchase history, and information related to Marketing Programs. 

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You are solely responsible for the accuracy and quality of the Customer Data. It is also your responsibility to ensure that your collection and use of Customer Data complies with all applicable laws, including those related to data privacy and transmission of personal information. You are solely responsible for obtaining the appropriate rights and level of consent necessary to interact and contact your Clients through the Services, including the Marketing Program, in accordance with applicable law. You are also solely responsible for resolving disputes related to ownership or access to Customer Data, including those involving current or former owners, co-owners, employees, Affiliates, contractors, or Clients. Please note that Boulevard has no obligation to resolve or intervene in such disputes.

3.5. Your Implementation of our Services, and your Cooperation

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Unless otherwise expressly stated in an Order, Customer is solely responsible, at its own expense, for acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment necessary for Customer, Clients, and Users to connect to, access, and use the Servicesand for Customer and Users to connect to, access, and use the Platform (“Customer Materials”). Any Hardware you purchase from Boulevard is subject to our Hardware Agreement.

3.6. Restrictions on Use

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Customer shall not, nor will it permit a User, Client, or other third party to: (i) transfer, resell, lease, license, or otherwise make available the Services to any third party (except to make the Services available to your Clients) or offer them on a standalone basis; (ii) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, object code or underlying structure, ideas, algorithms, trade secrets or know-how in or underlying the Platform, Services or any portion thereof; (iii) use the Platform, or Services for any illegal, unauthorized or otherwise improper purposes or for any purpose other than as set forth herein; (iv) modify, translate, copy or make derivative works based on any part of the Platform, Site or Services; (v) access the Platform or Site in order to build a similar or competitive product or service; (vi) use the Services in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation or this Agreement; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (viii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (ix) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (x) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (xi) systematically download and store Services content; (xii) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services; (xiii) remove any copyright, trademark, or other proprietary notices or labels on the Platform or Site; (xiv) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (xv) restrict or inhibit any other person or entity from using the Services; (xvi) use the Services to send unsolicited electronic messages (aka spamming); (xvii) misuse your Customer Account, including passwords and usernames associated with your Account, including sharing such information with third parties, particularly competitors of Boulevard; or (xviii) violate Boulevard’s Acceptable Use Policy.  

You agree to pay the fees for any Services you order and give us permission to process those payments. Fees are either outlined in the Order or on our website.

4. Fees & Terms of Payment

You agree to pay the fees for any Services you order and give us permission to process those payments. Fees are either outlined in the Order or on our website.

4.1. Fees

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You agree to pay the fees set forth in the applicable Order or, if you use any Service not set forth in an Order, the fees set forth on our Platform or otherwise confirmed by you upon purchase of the Services (collectively, your “Fees”) for the Term of the Agreement. Your Fees include, without limitation, recurring subscription fees for your access and use of the Boulevard Platform and Services ("SaaS Subscription Fees"), as well as additional Fees for the Services you purchased, including one-time fees for certain Professional Services and hardware purchases ("One-Time Fees"), recurring subscription fees for certain Professional Services (“Ongoing Fees”), and usage-based fees for our Payment Processing Services and use of our Marketing Program ("Usage Fees"). Unless expressly stated otherwise in this Agreement, all payments received by Boulevard, including any Fees, are non-refundable and your payment obligations are non-cancelable.

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For the sake of clarity, you are responsible for paying all Fees for the entirety of the Term of your Agreement.

You agree to pay surcharges and other fees (e.g., pass-through carrier fees) that we incur relating to your use of our Services.

4.2. Pass-Through Fees

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If Boulevard incurs other fees, surcharges, or charges from third party payment service providers, payment networks, banks, communication services, or telecommunication providers associated with your use of the Services, then such charges may be passed through to you at the same rate charged to Boulevard  ("Pass-Through Fees”) Unless communicated in advance, all Pass-Through Fees are exclusive of the Fees. You agree to pay all such Pass-Through Fees in connection with your use of the Services.

Unless otherwise specified, Fees for our Services do not include taxes – you are responsible for paying those.

4.3. Taxes

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Unless otherwise specified in an Order or an Invoice, Fees do not include any taxes, fees, duties, or other governmental charges that arise from the payment of any Fees or any amounts owed to Boulevard as a result of your use of the Services (collectively, "Taxes"). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Boulevard has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Boulevard will invoice Customer and Customer will pay that amount unless Customer provides Boulevard with a valid tax exemption certificate authorized by the appropriate taxing authority. Customers will not withhold any Taxes from any amounts due to Boulevard. For clarity, Boulevard is solely responsible for taxes assessable against it based on its income, property, and employees.

Fees may be updated during any Renewal Period, but we’ll notify you prior to making any changes. In addition, we reserve the right to update Fees during the Term with 30 days' prior notice to you.

4.4. Changes to Fees

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Boulevard may update Fees during each Renewal Period (as defined below); the updated Fees will go into effect when the applicable Renewal Term (as defined below) begins. Unless expressly provided in the Order, renewal of Services will be at Boulevard’s applicable pricing in effect at the time of the renewal, which will be communicated to you prior to Renewal. Additionally, Boulevard reserves the right to change Fees upon 30 days’ prior written notice to you, either through email and/or by posting notice to your Customer Account. Your continued use of the Services subsequent to any change in Fees will be deemed acceptance of such charges.  If you disagree with a fee change, you may terminate this Agreement pursuant to Section 6. 

An invoice of your fees will be available within your Customer Account. Payment for fees will be charged automatically to your primary payment method upon delivery of our invoice.

You agree to keep your payment method up to date; if your payment method is not valid, we reserve the right to charge for your fees from other payment methods registered on your Account or to offset those Fees from your Payout Account.

4.5. Terms of Payment

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Unless stated otherwise in the applicable Order, Boulevard will make invoices available to you via your Customer Account or email (each, an “Invoice”). Invoices will (i) detail the SaaS Subscription Fees and Ongoing Fees, (ii) detail applicable One-Time Fees and Usage Fees as well as (iii) a merchant processing report describing Payment Processing Fees. All Fees are payable upon delivery of each Invoice. Payment Processing Fees will be deducted daily from your payment deposit account.

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You will provide Boulevard with valid payment information in a form acceptable to Boulevard and designate your primary payment method. You authorize Boulevard to automatically charge your primary payment method for all Fees as they become due and payable, and for all past-due Fees, and other payments required under this Agreement. You agree to update your primary payment information as necessary and verify any information requested by Boulevard to acknowledge or complete any payment.

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Boulevard’s preferred form of payment is automated clearing house transfers from your designated account directly to Boulevard (“ACH Payment”). In order to facilitate ACH Payment, if chosen, you agree to complete and sign any required authorization agreement sent by or on behalf of Boulevard to authorize ACH Payment. 

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In addition, if Customer’s primary payment method is not valid or where Fees are otherwise due to Boulevard under this Agreement, Boulevard reserves the right to immediately, without prior consent or notice, offset, debit, or charge such amounts from funds: (i) due to Customer under this Agreement, including from Customer’s Payout Account or in Customer’s Reserve (as described in the Payment Processing Terms) or (ii) from other Customer payment instruments or accounts registered with Boulevard.

If you ever think that we charged you the wrong amount and you want to dispute it, then let us know in writing within 30 days of the billing date for the charge in question. We’ll act quickly, but you have to be reasonable when disputing a charge and must act in good faith and cooperate with us to resolve the dispute.

4.6. Payment Errors

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You must notify Boulevard in writing within 30 days of the date Boulevard invoices you for any Fees that you believe to be in error, specifying the nature of the error and the amount in dispute (“Payment Error Notice”). If Boulevard does not receive the Payment Error Notice within the 30-day period, all Fees will be deemed final and payable in full. If you are claiming a Payment Error, you must act reasonably and in good faith, and agree to cooperate diligently with Boulevard. Boulevard will not charge you a Late Fee (as defined below) or suspend the provision of Services for unpaid Fees where you have claimed a Payment Error, unless you fail to cooperate diligently with Boulevard or Boulevard determines the dispute is not reasonable or not brought in good faith by you.

‎ Customer acknowledges that both this MSA and all Orders are binding and cannot be canceled, and all payment obligations are final and non-refundable during the entire Term of your Agreement. As such, Boulevard considers any claim of a Customer Payment Error based solely on an attempt to cancel an Order and avoid payment to be unreasonable and not made in good faith.

You agree to pay additional charges if payment is late. As a last resort, Boulevard may suspend or terminate your account until payment is made.

4.7. Overdue Fees

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Customer’s failure to pay its Fees in full upon demand will be a breach of this Agreement and Boulevard reserves the right to suspend or terminate your access to the Services pursuant to Section 6 of the Agreement. The creation of new Customer Accounts is prohibited until the Fees due are paid in full.

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In addition, for any Fees that are not received within 10 business days of the date they are payable (as described in Section 4.5 above), Boulevard may also (i) charge a late fee of either 1.5% of the outstanding balance per month or the maximum interest permitted by law (whichever is less), plus costs of collection; (ii) modify the Terms in this Section 4 to require full payment before the provision or continued use of all Services (both for existing Orders and future Orders); and/or (ii) require other assurances to secure Customer’s payment obligations hereunder, including but not limited to, establishing a Reserve (as described in the Payment Processing Terms) or a requirement that the amount thereof be increased. 

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Customer expressly agrees that all communication in relation to overdue Fees and other amounts due from Customer under this Agreement will be made by electronic mail, Platform report, text message, or phone call. Boulevard or anyone acting on behalf of Boulevard, including third party collection agents, may make such communication to email addresses and phone numbers provided by the Customer to Boulevard.

5. Ownership Rights, Licenses, and Confidentiality

5.1. Ownership Rights

What is ours is ours, including our Services, Platform, Software, Marks, Documentation, Hardware, Confidential Information, and all data derived from the use of our services that does not identify or no longer identifies you, your end users, or any natural person.

What is yours is yours, including your Materials, Confidential Information, Marks, and Data.

5.1.1. Boulevard’s Intellectual Property

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As between Customer and Boulevard, and subject to the license grants to each Party below, Boulevard exclusively owns and reserves all rights, title, and interest in and to the Services, Platform; Software; Boulevard’s “Marks” (the Boulevard name and Boulevard logo, its additional trademarks, service marks, and tradenames, its domain names, as well as all words, slogans, taglines, images,  icons, logos, graphics, designs, and other indicators that identify Boulevard, or its business, services, or products); the Documentation; the Hardware; Boulevard’s Confidential Information (as defined in Section 5.3); Usage Data (as defined below); and all related technology, know-how, trade secrets and proprietary information, including, without limitation, all intellectual property rights therein.

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Boulevard’s Marks & copyrighted works. You may only use Boulevard’s Marks and our copyrighted works as set forth in our Trademark & Copyright Usage Guidelines. Unless Customer has licensed the right to white-label from Boulevard, Customer shall not, nor knowingly permit a third party to, remove or modify Boulevard’s Marks or Copyrighted Works or notices, attribution, or proprietary markings from the Platform or Services. 

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Usage Data. Notwithstanding Customer’s Ownership rights described in Section 5.1.2 regarding Customer Data, Customer acknowledges that Boulevard owns and reserves all rights to all data that is derived from the use of the Services that does not directly or indirectly identify the Customer, their Users, Clients, or any natural person, including (i) data such as volumes, use, frequencies, performance rates, and Service performance data and (ii) data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, your Users, Clients, or any  natural person, subject to any restrictions under applicable law (“Usage Data”).

5.1.2. Customer’s Intellectual Property

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As between you and Boulevard, you exclusively own and reserve all rights, title, and interest in and to your Confidential Information (as defined in Section 5.3), Customer Materials (as defined in Section 3.5), Customer Data (as defined in Section 3.4) and Customer Marks, including, without limitation, all intellectual property rights therein.

5.2. License Grants and Usage of Marks

You have a limited license to use our Services as described in this Agreement. You grant Boulevard a license to use your Customer Data in order to provide you our Services and to improve those Services. In addition, you grant us a license to use your feedback, logos, and other information in connection with providing Services and for marketing your business and Boulevard's.

5.2.1. Licenses to Customer

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Subject to the terms and conditions of this Agreement, Boulevard grants you a limited, non-exclusive, non-sublicensable, non-transferable (except as provided in this Agreement), revocable license and right to access and use the Platform and the Services set forth in an Order during the Term, solely for your internal business purposes.

5.2.2. Licenses to Boulevard

5.2.2.1. Limited License to Customer Data: You hereby grant Boulevard a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty free license and right to copy, distribute, process, display, publish, prepare derivative works of, and otherwise use your Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and Boulevard’s Privacy Policy, and to improve and develop Boulevard’s products and services. You represent and warrant to Boulevard that you have all rights necessary to grant this license and that your provision and use of Customer Data through and in connection with the Services does not violate any applicable law or rights of any third party.

5.2.2.2. Complete License to Feedback: You hereby grant to Boulevard a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, or your Users relating to the Services or Boulevard’s business (“Feedback”).

5.2.2.3. Limited License to Customer Marks: You grant Boulevard the right to use and display Customer Marks: (a) in connection with providing the Services, (b) on our Platform, (c) for marketing and promotional purposes in connection with Boulevard's business, and (d) to identify you as a customer in marketing and publicity. Boulevard agrees that any use by Boulevard of any of Customer Marks will be intended to inure solely to the benefit and goodwill of your business.

We will protect each other's confidential information and only use it or share it to fulfill the obligations stated in this Agreement; with the prior written permission of the other party; or if required by law, regulation, or court order, if we fulfill certain conditions, such as providing notice and reasonable cooperation.

5.3. Confidentiality

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A Party will not disclose or use any Confidential Information (as defined below) of the other Party except: (i) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement, which in Boulevard’s case, includes disclosure to its employees, agents, counsel, service providers, accountants, contractors, and subcontractors who have a need to know and are legally bound to protect the Confidential Information; (ii) with the other Party's prior written permission; or (iii) to the extent required by law or order of a court or other governmental authority or regulation, provided that the receiving Party will give the disclosing Party written notice (to the extent legally permitted) and provide reasonable cooperation in connection with such disclosure at the disclosing Party’s expense. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. If either Party believes that there has been an disclosure of Confidential Information in a manner not authorized under this Agreement, such Party will notify the other Party and assist the owner of the Confidential Information in remediating or  mitigating any potential damage, including any notification that may need to be sent to individuals impacted by such unauthorized disclosure. The Parties acknowledge and agree that no adequate remedy at law may exist for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach, the non-breaching Party will be entitled to seek immediate injunctive relief and other equitable relief, without waiving any other rights or remedies available to it. For clarity, nothing in this Section will restrict Boulevard with respect to Boulevard’s Usage Data (Section 5.1.1).

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"Confidential Information" means (i) Boulevard’s Software, Platform, and all other works of authorship, technology, software, processes, user interfaces, customizations, know-how, techniques, designs, inventions, source code, databases (and all data therein except for Customer Data) and other trade secrets utilized by Boulevard in the provision of the Services, Platform, Hardware, and Documentation; (ii) Boulevard’s Documentation to the extent that it is not generally available to the public; (iii) Customer Data; (iv) all confidential and proprietary information disclosed by one Party (“Discloser”) to the other (“Recipient”) under this Agreement whether in tangible or intangible form, including, but not limited to, financial, business or technical information; information relating to plans, marketing, concepts, processes, strategies, inventions, designs, costs, prices, customer lists, business opportunities, projections, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary”, or the receiving Party knows or should reasonably know is confidential or proprietary, and any information generated by the Receiving Party or by its Representatives that contains, reflects, or is derived from any of the foregoing; and (v) any Order or other separate written agreement. Confidential Information does not include any information which: (a) is publicly available through no breach of this Agreement or or any obligation owed to the disclosing Party; (b) was properly known by the receiving Party, and to its knowledge, without any restriction, prior to disclosure by disclosing Party; (c) was properly disclosed to receiving Party, and to its knowledge,  without any restriction, by another person without violation of disclosing Party's rights; or (d) is independently developed by receiving Party without use of or reference to the Confidential Information of disclosing Party.

6. Term & Termination

Unless otherwise specified in an Order, you agree to an initial term of 12 months that automatically renews for successive 12-month renewal terms, unless a party provides the other party with written notice of non-renewal at least 30 days before the end of the initial term or applicable renewal term. If you choose to terminate this Agreement during a term, you will remain responsible for payment of all fees owed for the entire term and will continue to be charged each month for the remainder of the term.

6.1. Term

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Unless otherwise specified in an Order, this Agreement begins on the Effective Date (as defined in Section 1.2) and lasts until the end of the initial term specified in the Order (the “Initial Term”). If no Initial Term length is specified in an Order, then the Initial Term shall be 12 months. Unless otherwise specified in an Order, this Agreement automatically renews for successive additional terms as set forth in the Order (each, a “Renewal Term,” and together with the Initial Term, the “Term”) until this Agreement is properly terminated, unless a Party provides the other Party with written notice of non-renewal at least 30 days before the end of the Initial Term or applicable Renewal Term (the “Renewal Period”). If no Renewal Term length is specified in an Order, then the Renewal Term shall be 12 months. 

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If you choose to terminate this Agreement during a Term, you will still be responsible for paying all Fees owed for the entire Term. You will continue to be charged each month for the remainder of the Term. 

If either of us violates this Agreement and does not fix the violation within 30 days of written notice, the other party may terminate this agreement. Either of us may terminate this agreement if the other party goes bankrupt or fails to continue its business upon 30 days written notice. In addition, Boulevard may terminate this agreement effective immediately upon notice if you commit fraud.

6.2. Termination for Cause

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A Party may terminate this Agreement (including all Orders and Services that are in effect) upon notice if (i) the other Party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within thirty (30) days after receiving written notice of such breach; or (ii) the other Party becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, assignment or composition for the benefit of creditors. For the avoidance of doubt, a breach of Boulevard’s Acceptable Use Policy or failure to pay all Fees will be considered a material breach of this Agreement. In addition, Boulevard may terminate this Agreement (including all Orders and Services that are in effect), effective immediately upon notice if you commit fraud. If Boulevard terminates this Agreement due to your material breach, then (i) it will close your Customer Account and revoke all access to the Platform and (ii) you must immediately pay any unpaid Fees associated with the remainder of the Term. Termination will not relieve you of your obligation to pay any fees payable to Boulevard for the period prior to the effective date of termination, unless Customer terminates this Agreement for Boulevard's uncured breach in accordance with this Section.

We’re in this for the long haul, but things come up. This section describes what happens when the Agreement is terminated. Upon termination, all amounts you owe will become due to Boulevard.

6.3. Effect of Termination

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Upon the effective date of termination of this Agreement: (i) all Orders will terminate and be of no force or effect, and Boulevard shall cease providing the Services and access to the Platform; (ii) all rights granted to Customer in this Agreement will cease; (iii) all amounts owed to Boulevard under this Agreement before termination will be due and payable in accordance with Section 4 (in the case of your termination due to a Fee increase during the Term pursuant to Section 4.4, that amount will be based on your original contracted Fees, and not the increase); (iv) Customer will remain responsible for settling all Disputed Transactions for all Transactions that occurred on your Customer Account and agree to pay all Disputes, Chargebacks Refunds, Returns, or Fines, regardless of the reason or timing pursuant to the Payment Processing Terms, and (v) within 30 days after such termination, each Party shall return or destroy all Confidential Information of the other Party in its possession and shall not make or retain any copies of such Confidential Information, except (a) as required to comply with any applicable legal or accounting record keeping requirement or (b) that a Party may retain Confidential Information in a Party’s archived backup files. For a period of no greater than 60 days following a notice of termination or non-renewal, and provided that you have paid Boulevard all amounts owed under this Agreement, Boulevard will make all Customer Data in its possession or control available to you through the Platform. After such 60 day period, Boulevard will have no obligation to retain or provide your Customer Data, except as required by applicable law. Upon termination of this Agreement, the terms of this Section 6 and the terms of the following Sections will survive: Section 1 (General Terms); Section 2 (Boulevard’s Services); Section 3 (Customer Responsibilities); Section 4 (Fees and Payment Terms); Section 5 (Ownership Rights, Licenses, and Confidentiality); Section 6 (Termination) Section 7.1 (Representations by Customer); Section 7.3 (Disclaimer and Limitation of Liability); Section 8 (Indemnity); and Section 9 (General).

Boulevard has the right to suspend or terminate the Services if we detect harmful or illegal activity under your account.

6.4. Right to Suspend Services

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Boulevard may suspend your access to and use of the Services at any time, upon written notice to you, if we determine in good faith that (i) your or your Users’ activities or use of the Services violates this Agreement (including the Acceptable Use Policy), applicable law, the intellectual property rights of a third party, or are otherwise disruptive or harmful to Boulevard or any third party; (ii) there has been an unusual and material spike or increase in your use of the Marketing Program and that such use is fraudulent or materially and negatively impacting the operating capability of the Services; (iii) we are required to do so by applicable law; (iv) there is any use of the Services by you or your Users or Clients that threatens the security, integrity, or availability of the Services; or (v) information in your account is untrue, inaccurate, or incomplete. Suspension under this Section will not relieve you of your obligation to pay any fees payable to Boulevard during the suspension period.

7. Representations & Warranties, Disclaimer and Limitations

This section states you must comply with all of your obligations in this Agreement, including your responsibilities described in Section 3. In addition, you promise (A) to provide complete and accurate information, including payment information; (B) to provide adequate notice and obtain necessary consent to provide Customer Data to Boulevard; (C) to comply with applicable Third Party Agreements; (D) that you are duly authorized and in good standing; (E) that your obligations under this Agreement are not in conflict with a separate obligation; and (F) to comply with any applicable export control laws and that you are not subject to any U.S. trade restrictions or sanctions.

7.1. Representations by Customer

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In addition to the representations and warranties made elsewhere by Customer in this Agreement, including Section 3, you represent and warrant that (i) you have and will continue to provide Boulevard with complete and accurate information, including payment and Customer Account information, and will promptly notify Boulevard in writing if any information changes occur; (ii) you have provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, and otherwise have all necessary rights to provide Customer Data to Boulevard for processing pursuant to this Agreement and to grant Boulevard the license in Section 5.2; (iii) you will comply with any applicable Third Party Agreement in connection with your use of the Services; (iv) you are duly organized, authorized, and in good standing under the laws of the state of your organization (if you are a business entity other than a sole proprietorship) and that you are duly authorized to do business in all other states in which your business makes such authorization necessary; (v) Customer’s performance under this Agreement is in conflict with a separate obligation under any charter or any other agreement (of whatever form or subject) to which Customer is a party or by which it is bound; and (vi) you will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulation and, if you reside outside of the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your jurisdiction. and (vii) you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country.

We pinky promise that the Services will perform as described in the applicable, published Documentation. If not, we’ve specified remedies in our SLA.

7.2. Performance Warranty by Boulevard

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Boulevard represents and warrants that the Services you order will perform materially in accordance with the functionality described in the applicable Documentation when operated in compliance with that Documentation. Your sole and exclusive remedy for a breach of this warranty will be that Boulevard will use commercially reasonable efforts to (i) modify the applicable Service or portion thereof to achieve the functionality described above within 30 days after Customer reports such issue; and (ii) if Boulevard is unable to modify a properly reported error within 30 days, Boulevard shall, upon request by Customer, provide remedies in accordance with the Service Level Agreement. Boulevard will have no obligation with respect to a warranty claim under this Section unless (a) notified by you in writing no later than 30 days after the first instance of any material functionality problem and (b) based on that notification, Boulevard is able to verify a reproducible error in the Services that indicates a breach of the foregoing warranty reported by Customer. This warranty will not apply (w) if the applicable ordered Services have been utilized in violation of this Agreement, the Documentation, or applicable law; (x) for any error caused by Customer or third party; (y) for any error caused by the combination of the Services with third party products or materials; or (z) to any free, trial, or Beta Services.

Except for any of the explicit promises in the Section above, we are offering our Services “as is.”

This Section outlines the types of damages that are available in the event of a claim. At a high level, neither of us is responsible for damages that indirectly result from an incident. Generally speaking, any direct damages Boulevard might owe to you are capped at the amounts you paid us (or should have paid us) in the 12-month period before the incident occurred.

7.3. Disclaimer & Limitation of Liability

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DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS”, “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. BOULEVARD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW. BOULEVARD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, COMPLETELY SECURE, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION TRANSMISSION, INTERNET, OR TELECOMMUNICATIONS NETWORKS) WILL BE UNINTERRUPTED, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. BOULEVARD MAKES NO WARRANTIES AND WILL HAVE NO LIABILITY FOR ANY BETA OFFERINGS, CUSTOMER MATERIALS, OR THIRD PARTY SERVICES WHATSOEVER.

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LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, LOST GOODWILL, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, LOSS OF USE OF ANY SOFTWARE OR HARDWARE, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BOULEVARD’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.

8. Mutual Indemnification

If someone comes after you claiming that our Services violate their intellectual property rights, we will fight that fight for you and pay any awarded damages or settlement we enter into. If we suspect this may occur, we’ll either obtain the rights for you to continue to use our services or modify our services, so they do not infringe. If we cannot do either of these, we will terminate these terms. However, we will not indemnify you for claims that arise from your breach of this Agreement, combining the Services with other applications, or any modifications to the Platform made by you.

8.1. Indemnification by Boulevard

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Boulevard will defend you, your Affiliates, and each of their directors, officers, and employees (collectively, “Customer Indemnified Parties”) from and against any claim, demand, suit, investigation, or action (collectively, “Claims”) against a Customer Indemnified Party by a third party alleging that Boulevard’s provision of the Software infringes or misappropriates such third party’s intellectual property rights (“Boulevard Indemnifiable Claim”). Boulevard will indemnify you from any claims, fines, penalties, damages, liabilities, judgments, costs, losses, Tax assessments, interest and expenses (including reasonable attorneys’ fees and other legal expenses)(collectively, “Losses”) awarded against a Customer Indemnified Party or for settlement amounts approved by Boulevard for a Boulevard Indemnifiable Claim. Notwithstanding the foregoing, Boulevard will have no liability or obligation under this Section with respect to any Boulevard Indemnifiable Claim arising out of (i) your use of the Services in breach of this Agreement; (ii) the combination, operation, or use of the Services with other applications, portions of applications, products, hardware, or services, including, without limitation, the Customer Materials, Customer Data, or Third Party Services, where the Services would not by themselves be infringing; (iii) any modification of the Platform or Services by any person other than Boulevard or its authorized employees, agents, or contractors; or (iv) Services for which there is no charge or Beta Offerings. 

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If Boulevard’s provision of the Services has become, or in Boulevard’s opinion is likely to become, the subject of any Boulevard Indemnifiable Claim for third party intellectual property rights infringement or misappropriation, Boulevard may at its option and expense: (i) procure the right to continue to provide the Services as set forth herein; (ii) modify the Services to make them non-infringing; (iii) replace the Service or portion of the Service with a non-infringing but functionally equivalent product;  or (iv) if the foregoing options are not reasonably practicable, terminate this Agreement and refund the amounts Customer paid for Services that relate to the period during which Customer was not able to use the Platform. This Section states Boulevard’s entire liability and Customer’s sole and exclusive remedy for infringement claims, suits or actions.

Similar to above, you need to fight the fight if someone comes after us because you or your Users or Clients misuse our Services or breach this Agreement, including negligence, fraud or willful misconduct, a violation of law, or if any Customer Data, Materials or Marks violate someone’s intellectual property rights.

8.2. Indemnification by Customer

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You will defend Boulevard, its affiliates, and each of their directors, officers, shareholders, agents, successors, and employees (collectively, “Boulevard Indemnified Parties'') from and against any Claim made or brought against a Boulevard Indemnified Party by a third party, including Customer’s Users and Clients, alleging or arising out of: (i) your or your Users’, Clients’, agent’s, contractors’, or subcontractors’ (“Customer Parties”) use or misuse of the Services, Platform, Software, or Marketing Program, including but not limited to a Customer Parties’ breach of this Agreement, including Section 3 (Customer Responsibilities), Section 7 (Customer Representations), or Section 9.1 (Your Affiliates, as more fully described therein), the Acceptable Use Policy, or any Third Party Agreement; (ii) any Customer Material, Customer Data, Customer Markes, or other content, material, or data provided by a Customer Party violating, infringing or misappropriating such third party’s rights, including intellectual property rights, privacy rights, or any third party rights; (iii) a Customer Party’s negligence, willful misconduct, or fraud, including any representation or warranty of the Customer Parties that is or becomes misleading; (iv) or any violation of applicable law by any Customer Party (collectively, “Customer Indemnifiable Claims”).   Customer will indemnify Boulevard from any Losses awarded against a Boulevard Indemnified Party or for settlement amounts that you approve for a Customer Indemnifiable Claim.

This Section outlines the indemnification process - how it works, what is required, etc. It applies to both of us equally. Please be sure to read it.

8.3. Conditions of this Mutual Indemnification

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As a condition to each Party’s indemnification obligations described in this Section: (i) the indemnified Party (“Indemnified Party”) will promptly notify the indemnifying Party (“Indemnifying Party”) of any Customer Indemnifiable Claim or Boulevard Indemnifiable Claim (individually or collectively referred to herein as a “Claim”) in writing; provided, however, that the failure to give prompt written notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (ii) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for  which it has an obligation to indemnify under this Section admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. With respect to Customer Indemnified Claims, in the event Customer fails to provide a reasonably sufficient defense of a claim, Boulevard may, after written notice to Customer, retain its own legal counsel and provide its own defense with respect to such claim, and Customer will reimburse Boulevard for reasonable attorneys’ fees and expenses for such defense. In such an event, Customer must consent in writing to any settlement or consent judgment that is binding upon Customer.

9. General

Your Affiliates may use our services according to this Agreement. However, you and your Affiliates are both responsible for the activities of your Affiliates. You represent that you can enter into this Agreement on behalf of your Affiliates. In turn, if you are an Affiliate, including a Franchisee, you represent that you are bound by this Agreement as if you were an original Party.

9.1. Your Affiliates. You represent and warrant that (i) you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates and (ii) provide directions and instructions to Boulevard in respect Boulevard’s Agreement with, and the provision of Boulevard’s Services to your Designated Affiliates (“Instructions”), including where such Instructions conflict with the instructions or directions given to Boulevard by one of your Designated Affiliates. Without limiting the generality of the foregoing, you represent and warrant that (i) you have the requisite consent to access and process the Customer Data, including personal information, submitted by your Affiliates in connection with their use of our Services pursuant to this Agreement and (ii) you have obtained and will continue to obtain the necessary permissions and consents, and otherwise have all necessary rights to access and process your Affiliates’ Customer Data. You and each of your Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Only the Control Affiliate will bring any claim against Boulevard on behalf of yourself and any Designated Affiliates. In addition to the Customer Indemnification in Section 8.2, you hereby agree to defend the Boulevard Indemnified Parties (as defined in Section 8.2), against any third party Claim (as defined in Section 8.1) arising out of: (i) any action Boulevard takes in accordance with any Instruction and (ii) an Affiliate’s access, processing, or Instructions to Boulevard in connection with Customer Data. 

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For the purposes of the above, “Affiliate” means any other entity that directly or indirectly controls, is controlled by, or is under common control with you and that has been designated to receive Services under this Agreement. “Affiliate” also includes any of your business locations, independent contractors, and any Franchisees that you have designated to receive Services under this Agreement (each a “Designated Affiliate”). “Control” for purposes of the above definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement, or other contractual arrangements. “Control” also means the ability to direct Boulevard to provide our Services to Designated Affiliates and to provide Instructions regarding those Designated Affiliates (in such cases, you are the “Control Affiliate”). “Franchisee” for the purposes of the above definition means any party that is bound by a franchise agreement with you, the “Franchisor”, and that you have designated to receive Services under this Agreement.

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A note to Designated Affiliates. If you are a Designated Affiliate (like a Franchisee) that has been designated to receive the Boulevard Services by a Control Affiliate (like a Franchisor), you acknowledge and agree that you are bound by the terms of this Agreement as an original party, and may only use the Services under and in accordance with this Agreement. Without limiting the foregoing, you acknowledge that while this Agreement is between you and Boulevard, in order to facilitate the effective provision of our Services to you and the Control Affiliate, it is in each Party’s interest for Boulevard to take Instructions from the Control Affiliate in relation to the provision of our Services to Designated Affiliates. Therefore, you hereby: (i) grant Boulevard the right to accept Instructions in respect to any aspect of the provision of our Services to you and our Agreement with you, and you represent and warrant that you have granted the Control Affiliate the right to provide such Instructions to Boulevard; (ii) acknowledge and agree that where Boulevard accepts instructions from the Control Affiliate that conflict with instructions or directions you have given to Boulevard, the Instructions that Boulevard receives from the Control Franchisor shall prevail and Boulevard shall have no liability under the Agreement or otherwise for any failure to comply with your conflicting instructions or directions; and (iii) represent and warrant that the Control Affiliate has the requisite rights and consent to access and process your Customer Data.

This is between us. We are entering this Agreement with you and you agree you won’t transfer it to anyone else without our prior consent.

9.2. Assignment. You may not assign, transfer, or delegate this agreement or your rights and obligations hereunder without Boulevard’s prior written consent which will not be unreasonably withheld or delayed. Boulevard may assign, transfer, or delegate this agreement and any rights and obligations without restriction at its sole discretion, with 30 days’ prior written notice.

You give us permission to contact you through the Platform or via email for any Notices under this Agreement and agree to send any Notice to Boulevard  at the email address listed in this Section.

9.3. Notices. To be effective, notices under this Agreement to Boulevard will be provided via email to legal@blvd.co and notices to Customer will be provided via email or the Platform to the relevant contact(s) you designate in your account.

California law applies to this Agreement.

9.4. Governing Law & Attorney’s Fees. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Los Angeles, California in any litigation arising out of this Agreement or the Services. If any legal action is brought by a Party to enforce this Agreement, the prevailing Party will be entitled to receive its reasonable attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing Party.

In the unlikely event we end up in a legal dispute, you agree we will first attempt to work together to resolve it through this informal process.

9.5. Mandatory Informal Dispute Resolution. If you have any dispute with Boulevard arising out of or relating to this Agreement, you agree to notify Boulevard in writing with a brief, written description of the dispute and your contact information, and Boulevard will have 30 days from the date of receipt within which to attempt to resolve the dispute to your reasonable satisfaction. If the parties are unable to resolve the dispute through good faith negotiations over such thirty 30 day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.

9.6. Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND BOULEVARD, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 9.5 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND BOULEVARD AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at https://www.adr.org/sites/default/files/Commercial-Rules-Web.pdf) as amended by this Agreement. Any arbitration hearing will be held in Los Angeles County, California. The applicable governing law will be as set forth in Section 9.4 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

Neither you, nor Boulevard, will be liable for things outside of our control, like natural disasters.

9.7. Force Majeure.  Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment  of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

If any part of this Agreement isn’t enforced, it still stands, as does the rest of the Agreement.

9.8. Waiver and Order of Precedence.  No failure or delay by either Party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Summaries, titles, and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order(s), (2) the terms set forth in this MSA and the Supplemental Terms, (3) the Boulevard Acceptable Use Policy, and (4) the applicable Documentation.

If any part of this Agreement cannot be enforced, the rest of the Agreement still stands.

9.9. Severability.  In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect to the maximum extent permitted by law.

This Agreement, and any terms referenced in this Agreement, control our relationship.

9.10. Entire Agreement. This Agreement, together with any Order, any exhibits, attachments hereto, and terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by Boulevard, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. 

We may modify this Agreement, so you may want to check this page regularly.

9.11. Modifications to this Agreement. Boulevard may, in our sole discretion, modify this Main Services Agreement (MSA) at any time. Any changes we make will become effective when we post a modified version of the MSA to https://www.joinblvd.com/legal/main-services-agreement (or such other URL as specified by Boulevard). Changes to the MSA will not be retroactive, but will apply to your subsequent access and use of the Service. When we update the MSA, Services. When we make material changes to thiswe will update the “Last Updated” date at the top of the MSA and will notify you on the Platform or by sending you an email (“MSA Notice”). Your login to your Customer Account and proceeding to access the Platform beyond any MSA notice on or after the date the updated version of this Agreement is effective and binding, constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions.  It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. If you do not agree to the updated version of this Agreement, you must stop using the Services immediately.

You agree that we can save a few trees and communicate with you electronically.

9.12. Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

9.13. Copyright Policy. Boulevard respects the intellectual property rights of others and expects its users to do the same. Boulevard will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Copyright Policy, as may be updated by Boulevard from time to time. Any data or information submitted to our Services is subject to our Copyright Policy.