BoostUp Customer Policies
Last Modified on: 03/02/2019
12.1. Assignment; Transfer. Neither Customer nor Reseller may not assign these Terms or otherwise transfer any usage rights created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of The Arden Company. It the transfer is approved by The Arden Company, we reserve the right to charge a transfer fee. Any purported assignment of these Terms, or any rights in violation of this Section will be deemed void. For clarity, Customers and Resellers are not permitted to solicit other subscribers to transfer or link Service(s) to their account in order to fraudulently obtain discounted pricing. The Arden Company may terminate the Customer or Reseller’s right to use the Services immediately if Customer or Reseller breaches this Section 12.1. Customer or Reseller, as applicable, will remain liable for the payment of the applicable fees for the remainder of their initial subscription term or then-current renewal period. The Arden Company may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.
12.2. Third Parties. The Arden Company will have the right to use third parties, including, but not limited to, employees of The Arden Company’ affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these Terms, all references to The Arden Company or its employees will be deemed to include such Subcontractors.
12.3. Technical Data. You shall not provide to The Arden Company any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. You certify that all information provided to The Arden Company has been reviewed and scrubbed so that all technical data and other sensitive information relevant to your ITAR regulated project has been removed and the information provided is only relevant to bug reports on The Arden Company products.
12.4. Compliance with Laws. You agree to comply with all applicable laws, regulations, and ordinances relating to your obligations under these Terms.
12.5. Survival. Any provision that by its nature is intended to survive the termination of these Terms will survive termination of these Terms.
12.6. Notices. Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.
12.7. Force Majeure. The Arden Company will not be liable to you for any delay or failure of The Arden Company to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of The Arden Company. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by you in providing required resources or support or performing any other requirements hereunder.
12.8. Restricted Rights. Use of the Services by or for the United States Government is conditioned upon the Government agreeing that the Services is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. You are responsible for assuring that this provision is included in all agreements with the United States Government and that the Services, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.
12.9. Entire Agreement. These Terms, along with the Order and any other terms incorporated by reference herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein.
12.10. Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
12.11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
12.12. Severability and Reformation. Each provision of these Terms is a separately enforceable provision. If any provision of these Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these Terms to remain in effect in accordance with its terms as modified by such reformation.
12.13. Independent Contractor. The Arden Company is an independent contractor and nothing in these Terms will be deemed to make The Arden Company an agent, employee, partner, or joint venturer of Customer or Reseller. No party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
12.14. Governing Law; Venue. The laws of the State of New York, USA govern the interpretation of these Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these Terms. The parties agree that the federal and state courts located in New York County, New York, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to these Terms. Mediation will be held in New York, NY, USA.
12.15. Dispute Resolution.
Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.
Mediation. Any dispute, controversy, or claim arising under, out of, or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language to be used in the mediation will be English.
Opportunity to Cure. Notwithstanding anything contained hereunder, you agree and acknowledge that no dispute resolution or litigation will be pursued by you for any breach of these Terms until and unless The Arden Company has had an opportunity to cure any alleged breach. You agree to provide The Arden Company with a detailed description of any alleged failure and a description of the steps that you understand must be taken by The Arden Company to resolve the failure. The Arden Company shall have sixty (60) days from The Arden Company’ receipt of your notice to complete the cure.
Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.