BouncePilot Terms of Service
Effective Date: Jan 11, 2019
These Terms of Service (“Agreement”, “Terms”) describe the terms and conditions under which you (“Client”, “you”, or “your”) may access and use BouncePilot’s Service.
BY PLACING AN ORDER OR USING BOUNCEPILOT’S SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (FOR INSTANCE, AS A MARKETING AGENCY ON BEHALF OF A CLIENT), OR YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH OTHER ENTITY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY (OR, IF SUCH ENTITY IS ACTING AS AN AGENT ON BEHALF OF ANOTHER THIRD PARTY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY AND THE AUTHORIZING PARTY(IES), AS APPLICABLE). BOUNCEPILOT MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH BOUNCEPILOT THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 13.
1. Definitions and Interpretation
1.1 In these Terms the following words and expressions shall have the following meanings:
- Affiliate means any entity that directly or indirectly controls, is controlled by or is under common control with a party.
- Aggregated Client Data means data collected by BouncePilot for the purpose of sending Email Content i.e. Client Data that does not identify or permit identification of a client (for example, an Identifier).
- Agreement means these Terms and associated Orders placed by the Client and accepted by BouncePilot in accordance with clause 2 (Appointment) below.
- Clear Data Set means, where available (and unless otherwise agreed in writing by BouncePilot) the following information in relation to a relevant User: (i) title; (ii) first name; (iii) last name; (iv) email address; and (v) any other data which the parties from time to time agree, and in any event shall always include the email address of the relevant individual User.
- Client has the meaning set out in the relevant Order.
- Client Content means images, graphics, logos, trademarks, text, data, links or other creative elements supplied by or on behalf of the Client to BouncePilot (by data feed or otherwise) for inclusion in Email Content.
- Client Data means browsing data relating to Users that BouncePilot collects through BouncePilot Cookies on the Client Properties and/or via email communications sent by the Client to Users (such as the number of pages viewed or the products the user viewed on the Client Properties).
- Client Properties means the website at any domain name controlled by the Client and/or the software applications/other hosted digital platforms or assets controlled by the Client, as specified in the Order.
- Cookies means a small text file or information stored on a user browser or device that stores an Identifier (IDR), and which BouncePilot may use to single out Users.
- Data Protection Laws means all applicable laws and regulations relating to the processing of personal data and privacy and the sending of direct email marketing or advertising in the relevant jurisdiction, which shall include, for example, the CAN-SPAM Act, and in each case the equivalent of any of the foregoing in any relevant jurisdiction together with and any statutory modification, revision or re-enactment of the foregoing from time to time.
- Effective Date means the ‘Effective Date’ specified in the Order or if no date is specified, the date on which the Order is accepted in accordance with clause 2 (Appointment) below.
- Email Content means transactional email, direct marketing email or advertising email containing the Client Content sent to Users using the BouncePilot Email Technology (on behalf of and/or in the Client’s name) with the aim of promoting the Client’s products and/or services.
- Identifier means an email address of a User which has been encrypted using MD5 encryption script, or such other method of identifying a User which can be referenced back to a unique email address, or such other method of encrypting an email address, as BouncePilot may use or specify in writing that the Client (or a Publisher) use. Identifiers are Aggregated Client Data.
- Publisher means a third party ‘publisher’ or email list/database supplier of: (i) Identifiers in respect of which the Users have opted-in to receive Email Content; and/or (ii) Cookie setting services to identify an individual User. The identity of a Publisher may be unknown to the Client.
- Service means the service chosen by the Client in the Order.
- Tag means cookie-setting and data collection software, tags, pixels, cookies, web beacons, clear GIFs or similar technologies that monitor or record events related to Users’ activity on the internet.
- Territory means the legal jurisdiction in which the recipients of Email Content are located, as specified by the Client on an Order.
- User means an individual who, as the context requires, is a user of a Client Property, whose Identifier has been supplied by a Publisher and/or by the Client and/or has been identified by BouncePilot using the BouncePilot Email Technology and may receive Email Content.
- User Data means data or other information concerning Users, which may include, for example: title, first name, surname, email address, IP address, online browsing habits, technology and software used for browsing/email, geographical location, gender, purchase history, membership status or similar loyalty or reward level and how users have interacted with any Email Content (including opening an email or clicking on any links within an email).
- BouncePilot Data means data or information (other than the Client Data): (i) related to the delivery of Email Content (such as the number of emails sent to Users); (ii) collected for the performance of the Service; or (iii) collected by BouncePilot and its Affiliates using any BouncePilot Technology. BouncePilot Data shall also include the Aggregated Client Data (including the Identifiers).
- BouncePilot Sourced Data means aggregated data provided by third parties independently of the provision of the Service to the Client and may include publisher data.
- BouncePilot Technology, BouncePilot Email Technology means BouncePilot’s proprietary technology, which aims to send targeted transactional, direct marketing, or advertising emails to Users based on their online browsing history or behavior.
- Year means a period of twelve (12) consecutive months commencing on the Effective Date and each subsequent twelve (12) month consecutive period thereafter.
1.2 Words denoting the singular include the plural and vice versa. Any words following the terms ‘including’, ‘include’, ‘in particular’ or ‘for example’ or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
The Client appoints BouncePilot to provide the Service in accordance with these Terms. The Client may submit orders for the Service by submitting an Order. If BouncePilot accepts the order, it shall confirm to the Client in writing and will then provide the Service in accordance with the Agreement.
3. Description of the Service
3.1 Setting up the Service
3.1.1 The Client will comply with such technical requirements and specifications of the Service as BouncePilot may specify in writing (together with any other requirements and specifications BouncePilot may specify in writing from time to time, for example in respect of providing and improving other BouncePilot products and services which the Client may be interested in receiving), which may include the following: (i) including and maintaining Tags supplied by BouncePilot on the Client Properties and within emails sent by the Client to its database of email subscribers which permits BouncePilot to place Cookies on the User browser or device; (ii) supplying BouncePilot with (or with sufficient access to) detailed and up-to-date information in respect of the Client’s products and/or services to be included in Email Content (i.e. the ‘catalogue files’); (iii) supplying BouncePilot with the Client’s logos and other Client Content to be displayed in Email Content; (iv) supplying BouncePilot with lists of email recipients to be excluded from the Service; and (v) ensuring DNS configurations are setup such that BouncePilot and its Affiliates may send email on behalf of the Client.
3.1.2 The Client shall have the option of supplying additional User Data to BouncePilot for use in sending Email Content, which BouncePilot may use in its sole discretion, subject to clause 7.1.1(iii) (Warranties).
3.1.3 The Client authorizes BouncePilot to collect and to receive information related to their reputation in the emailing ecosystem (e.g. complaint data, databases managed, hosted and/or used by the Client, etc.) from third parties and other anti-abuse organizations. BouncePilot reserves the right to terminate this agreement based upon the information obtained from such anti-abuse entities.
3.2 Publisher Services
3.2.1 BouncePilot may use Publisher Services where the Publisher will provide BouncePilot with the Identifiers of the Users to whom BouncePilot or its Affiliates will send the Email Content on behalf of and/or in the name of the Client. BouncePilot shall create a database of such Identifiers (and may store the same in a Cookie) and query the corresponding Publisher database of Users who have consented (in accordance with the Data Protection Laws) to receive Email Content. On receipt of confirmation from the Publisher that such Users have so consented, BouncePilot shall create Email Content using the Client Data and Client Content and then use its reasonable endeavors to send Email Content to those Users. If BouncePilot receives a Clear Data Set in regards to this service, once BouncePilot has sent Email Content to a User, BouncePilot shall delete the corresponding Clear Data Set in respect of that User.
3.3 Operation of the Service
3.3.1 The Client acknowledges and accepts that BouncePilot has absolute discretion as to how often Email Content are sent and how priority is governed between BouncePilot clients and Identifiers. BouncePilot reserves the right to modify the BouncePilot Technology and/or cease sending Email Content on behalf of the Client without notice or compensation.
4 – Measurements and Performance Report
BouncePilot measures, through the BouncePilot Email Technology and/or Affiliates, the amount of Email Content successfully sent, the interaction Users make with it, and/or other metrics necessary for calculating the charges under the Agreement, including but not limited to User interactions and transactions which occur on Client Properties after receiving Email Content. The Client accepts that BouncePilot’s measurements are final and shall prevail over any other measurements. For monthly Clients, BouncePilot shall provide weekly reporting via email. Statistics are updated with a maximum delay of 7 days. Any modifications made to an Order and approved (either by the Client or upon the Client’s instruction) – including, but not limited to, budget adjustments or pausing a campaign, are solely the Client’s responsibility and the Client shall be liable for any costs incurred as a result of modifications. The Client gives permission for BouncePilot to make such modifications on its behalf in accordance with any specific instructions communicated in writing.
5 – Invoicing and Payment
The Client will receive monthly invoices from BouncePilot. The Client minimum investment (if applicable) for setting up the Service is defined in the Order. BouncePilot retains the right, in its sole discretion, to request prepayment from a Client, as specified in the Order. Standard practice is to request a prepayment of 10% of the expected monthly budget. The Service will be charged on the basis set out in the Order. BouncePilot shall be entitled to raise invoices in arrears at any time after the end of the month in which the Service has been delivered. BouncePilot does not guarantee that its charges for the Service will reach any maximum amount payable for the Service or ‘budget’ as specified in an Order. Unless specified otherwise in the Order, the Client shall pay all amounts due, without set-off, within 15 days from the invoice date. All payments to BouncePilot shall be made in the currency of the invoice, and are quoted exclusive of any applicable tax which shall be payable at the time and in the manner required by law. Payment may be made via ACH, check, credit card or wire transfer. If paid by credit card, Client is responsible for all associated credit card fees at the rate of 3%. BouncePilot shall be entitled to charge interest and recover costs on overdue amounts as specified or allowed by the relevant law or as set out in the Order. If BouncePilot commences legal proceedings to collect any payment and prevails, Customer shall pay BouncePilot’s reasonable attorney fees, court costs and other collection expenses. Any claim on the invoice can only be raised within one month of receipt. Unless stated otherwise in the Order, all invoices shall be payable solely by the Client. In the event that a number of different BouncePilot Affiliates deliver Email Content campaigns, BouncePilot shall have the right to issue multiple invoices in different currencies as appropriate.
6 – Intellectual Property
Each party remains sole owner of the intellectual property rights it owned prior to the execution of the Agreement. BouncePilot is the sole owner of all intellectual property rights in and to the BouncePilot Technology and BouncePilot Data. The Client is the sole owner of all intellectual property rights in and to Client Data and the Client Content. The Client authorizes BouncePilot (including BouncePilot’s Affiliates): (i) to collect, use, analyze and process the Client Data, to combine the Client Data with BouncePilot Data and BouncePilot Sourced Data and to perform the Service for the Client; (ii) to use the Client Data to improve the BouncePilot Technology, the Service and other BouncePilot products, programs and/or services; and (iii) to disclose Client Data if required by law. For the duration of the Agreement, the Client grants BouncePilot (including BouncePilot’s Affiliates) a worldwide, royalty-free, non-transferable, irrevocable license to use, display, reproduce and represent the Client Content (including the Client’s trademarks and logos): (a) in the Email Content; and (b) on all documentation promoting the Service. BouncePilot shall seek prior authorization from the Client for any press release using the Client’s name, logos and/or trademarks. The Client shall not modify or attempt to modify the code or otherwise reverse engineer or create derivative works of any aspect of the BouncePilot Technology except as expressly permitted by applicable law notwithstanding any contractual provision to the contrary. To the extent that the Client owns any intellectual property rights in or to the Identifiers, the Client hereby assigns such rights to BouncePilot and shall do all such acts (at BouncePilot’s cost) to ensure that such rights fully vest in BouncePilot (or its designated Affiliate).
7 – Warranties, indemnities, and disclaimers
7.1 Mutual warranties
7.1.1 Each party warrants and represents that (i) it has the right, power and authority to enter into this Agreement and perform its obligations as set out herein (and in respect of any agency entering into this Agreement on behalf of or in respect of an end client, that it has such authority from its client to enter into this Agreement on its behalf or for its benefit. The agency shall ensure that its client is aware of the terms of this Agreement and shall procure that the client enters into such agreement directly with BouncePilot as BouncePilot shall require in writing); (ii) any information provided to the other party under the Agreement is true, accurate, complete, not misleading and current; (iii) it will abide by Data Protection Laws at all times and in respect of User consent will apply good market practices; and (iv) it will implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
7.1.2 Each party will notify the other party promptly (and in any case within two working days of becoming aware of a relevant matter) if: (i) it receives a request for information or a complaint from any User regarding Email Content sent or a Tag or Cookie placed pursuant to the Agreement; or (ii) if it is required to deal or comply with any assessment, enquiry, notice or investigation by a regulator in relation to any Email Content sent pursuant to the Agreement (except that BouncePilot shall only notify the Client if the query, request for information, complaint, enquiry, notice or investigation (“Query”) relates to the Client). Each party shall provide the other party with reasonable co-operation and assistance to enable the other party to respond appropriately to such Query. Where the Client responds to a Query relating to any Email Content, the content of the Client’s response shall be subject to BouncePilot’s prior written approval, not to be unreasonably withheld or delayed.
7.2 BouncePilot Warranties
EXCEPT AS SET OUT IN THIS CLAUSE, BouncePilot GIVES NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER AND, IN PARTICULAR, BUT WITHOUT LIMITATION, EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OR THE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE BOUNCEPILOT EMAIL TECHNOLOGY OR ANY SERVICE PROVIDED UNDER THE AGREEMENT. BouncePilot warrants that: (i) it will perform its obligations under this Agreement using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (ii) save in respect of the Client Content or Client Data, the provision of the Service shall not infringe the intellectual property rights any third party in the Territory; (iii) all Email Content sent by BouncePilot shall contain an effective opt-out notice and/or link to enable recipients to opt-out of receiving future email marketing through BouncePilot Email Technology; and (iv) its agreements with Publishers provide for Publishers’ commitment to obtain valid consent from Users to receive marketing email from third parties. Publishers also commit to update their database on a regular basis and promptly in the event of opt-out from receiving promotional emails from third parties.
7.3 Client Warranties
7.3.1 The Client warrants and represents to BouncePilot that: (i) it has the right to provide the Client Content, Client Data, and User Data to BouncePilot for use as part of and in connection with the Service, without infringing or breaching the rights of any third party including, without limitation, any intellectual property or privacy rights; (ii) the Client Content, Client Data and User Data (to the extent supplied) comply at all times with all applicable laws, statutes, statutory instruments, contracts, regulations, advertising and marketing codes of practice in any Territory; (iii) the Client Content does not contain any material that is obscene, defamatory or contrary to any applicable law or regulations and does not give access via hyperlinks to any property containing material that is obscene, defamatory or contrary to any applicable law or regulation; (iv) Client has a reasonable basis for all claims made within the Email Content, Landing Pages and Linked Content, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns; and (iv) Client shall, in accordance with good IT industry practice, not transmit or permit the transmission of any virus or malicious code to BouncePilot or email recipients, whether through the Client Properties, BouncePilot Technology in any Client Content, Client Data or User Data provided to BouncePilot or otherwise.
7.3.2 The Client warrants and represents that it has made all such registrations, notifications and/or declarations that are applicable under the relevant Data Protection Laws, including, for example, any notification to the appropriate regulatory authority that it governs or has jurisdiction over Client and/or the data being provided to BouncePilot for the purposes of the Service. If required by the relevant law, the Client shall inform Users of their rights under such law to access, rectify and delete their personal data and/or to refuse consent to receive Email Content.
7.4.1 To the maximum extent not prohibited by applicable law, Client agrees to indemnify, and hold BouncePilot, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless from and against any claims, liabilities, damages, losses, costs and expenses (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of, relating to, or in any way connected with (i) Client’s access to or use of the Service, including any and all features, functionality, tools, and content, (ii) Client’s breach of this Agreement, including any violation of federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) Client’s gross negligence or willful misconduct.
7.4.2 Client agrees that, at BouncePilot’s option, Client will conduct the defense of any such claim or action; provided that, notwithstanding our election that Client conduct the defense, (i) BouncePilot may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) Client will not enter into any settlement or other compromise without the prior written approval of BouncePilot (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
7.4.3. No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by this Agreement.
7.5.1 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, BOUNCEPILOT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT.
8 – Liability
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOUNCEPILOT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BOUNCEPILOT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE..
THE ENTIRE RISK ARISING OUT OF OR RELATING TO CLIENT’S USE OF THE WEBSITE AND ANY TRANSACTION CONDUCTED BETWEEN CLIENT AND BOUNCEPILOT IS AND REMAINS WITH CLIENT.
CLIENT HEREBY RELEASES BOUNCEPILOT FROM AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
8.2 NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY EVENT BEYOND THE REASONABLE CONTROL OF THAT PARTY INCLUDING, WITHOUT LIMITATION, FIRE, FLOOD, STORMS, INSURRECTION, WAR, TERRORISM, EARTHQUAKE, POWER FAILURE, CIVIL UNREST, EXPLOSION, EMBARGO, STRIKE (A “FORCE MAJEURE EVENT”).
8.3 FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR ANY OTHER MATTER TO THE EXTENT SUCH EXCLUSION OR LIMITATION WOULD BE UNLAWFUL.
8.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOUNCEPILOT’S TOTAL, AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, FOR WHATEVER CAUSE, WHETHER IN CONTRACT OR IN TORT, OR OTHERWISE, WILL BE LIMITED TO GENERAL/DIRECT MONEY DAMAGES AND SHALL NOT EXCEED A SUM EQUAL TO THE AMOUNT INVOICED TO THE CLIENT AND RECEIVED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT OR CIRCUMSTANCES GIVING RISE TO THE CLAIM.
9 – Privacy
10 – Term and Termination
The Agreement shall apply as from the Effective Date and, subject to remaining in force for a minimum period as set out in the relevant Order from such date (the “Minimum Period”), shall expire (i) on the ‘expiry date’ stated in the Order; or (ii) on the date when the total budget chosen by the Client (and as set out in the Order) is exhausted. Without prejudice to any other rights and remedies, either party may terminate the Agreement with immediate effect by written notice to the other party: (a) if the other commits a material breach of any of its obligations under the Agreement and in the case of a remediable breach, fails to remedy it within seven (7) days of the date of receipt of notice from the other specifying the breach and requiring it to be remedied; (b) on the occurrence of a Force Majeure Event that has continued for a minimum period of two months; (c) if either party is unable to pay its debts, becomes insolvent, goes into liquidation, appoints a receiver or an administrative receiver (or if steps are taken to achieve the same) or any analogous steps or proceedings occur under relevant local law; or (d) if either party compounds with its creditors (or proposes to do the same), other than for the purposes of a solvent reorganization or amalgamation. BouncePilot may terminate the Agreement on 7 days’ written notice if the Client fails to pay any amount due to BouncePilot under the Agreement after written demand for the same. Expiration or termination (for any reason) of the Agreement shall not affect any accrued rights or liabilities which either party may then have nor shall it affect any clause which is expressly or by implication intended to continue in force after expiration or termination. On termination or expiration of the Agreement, BouncePilot shall be entitled to invoice for any Service performed during the term and the Client shall pay all invoices within 15 days of their date, together with any other outstanding sums due and payable. With effect from the expiry of the Minimum Period, either party may terminate this Agreement on 30 (thirty) days’ prior written notice to the other.
11 – Confidentiality
Each party undertakes that it will not at any time disclose to any third party, except its directors, employees, professional representatives or advisors or as may be required by law or any legal or regulatory authority, the terms and conditions of this Agreement or any confidential information concerning the business or affairs of the other party (including the other party’s Affiliates) which is disclosed to it by the other party. If such disclosure is required by law or any legal or regulatory authority, the party required by the authority shall give the other party written notice of such disclosure as soon as possible prior to making the disclosure and upon request, shall assist the other party in obtaining a protective order or other relief.
12 – No Assignment
The Client shall not without BouncePilot’s prior written consent assign at law or in equity, sub-license or deal in any other manner with the Agreement or any rights under the Agreement, or sub-contract any or all of its obligations under the Agreement or purport to do any of the same.
13 – Resolving Disputes – Forum, Arbitration, Class Action Waiver, Governing Law
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
13.1 Please contact us first! We want to address your concerns without resorting to formal legal proceedings. Before filing a claim, Client agrees to try to resolve the dispute informally by contacting BouncePilot first through peaceandlove@BouncePilot.com.
13.2 Judicial forum for disputes. Client and BouncePilot agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts of New York, New York, subject to the mandatory arbitration provisions below. Client and BouncePilot consent to venue and personal jurisdiction in such courts.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
Client and BouncePilot Agree To Arbitrate. Client and BouncePilot agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration.
Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in New York, New York, or any other location we agree to.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees.
Opt-out of Agreement to Arbitrate. Client can decline this agreement to arbitrate by sending an email within 30 days of first accepting this Agreement to arbitration_optout@BouncePilot.com clearly stating that Client wishes to opt out of arbitration with BouncePilot. Include the first and last name of either the Commercial, Technical, or Financial contact for the Client for which the account was created, and the email address associated with that contact.
13.4 CLASS ACTION WAIVER Both parties agree to resolve any disputes, claims or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), or any services provided by BouncePilot will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
13.5 Controlling Law. This Agreement is governed by the law of the state of New York except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.
14 – Miscellaneous
(i) BouncePilot reserves the right to modify the Terms at any time. The Terms are effective as soon as they are available online at the following link: http://BouncePilot.com/terms-and-conditions/. They shall automatically apply to each Order or Order renewal concluded after the modifications.
(ii) This Agreement shall be governed by New York State law and the Parties submit to the exclusive jurisdiction of the courts of New York, New York in respect of any dispute or matter arising out of or connected with the Agreement.
(iii) Save as set out in this clause 14, the Agreement may be amended only by a written agreement executed by an authorized representative of each party. The Parties acknowledge and accept that electronic format shall be deemed an acceptable means of communication for the execution or sending of an Order or to modify the terms of an Order including its renewal. All notices will be addressed to the contact information set forth in the Order executed between the Parties.
(iv) The Client’s placing of an Order implies full acceptance by the Client of the Terms notwithstanding any term to the contrary that may be contained in any of the Client’s documentation, in particular in any purchase order. The Terms and each Order constitute the Agreement. If there is any contradiction between the Terms and the Orders, it shall be resolved in the following order of priority: first, Orders; second, Terms.
(v) The Agreement constitutes the complete and entire agreement between the parties and shall supersede any and all other prior understandings, commitments, representations or agreements, whether written or oral, between the parties.
(vi) Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party.
(vii) If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or enforceability shall not affect the other provisions of the Agreement, which shall remain in full force and effect.
(viii) This Agreement is available in various different language versions. However, in the event of any dispute between different language versions of these Terms the English language version shall prevail.
(ix) In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under the Agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
(x) Unless specified otherwise in the Agreement, no third party shall have any rights or obligation under this agreement.
If you have any questions or concerns, please contact us at peaceandlove@BouncePilot.com.
You can also write to us at:
c/o Dentons US LLP
Attn: James E. Jasaitis
1221 Avenue of the Americas
New York, N.Y 10020