Terms of Services
The following terms of service govern your access to and use of our online platform for the creation of service(s) and related services provided by BoostUP; by The Arden Company, Inc.
1.1. “Customer” means any person or entity having an account allowing access to our Services and paying a subscription to access our Services.
1.2. “End-User” means any person or entity who uses the service(s).
1.3. “Enterprise” means any entity paying a subscription to access our Services and registered with The Arden Company as such.
1.4. “Intellectual Property Rights” means inventions and patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade names, trade dress, logos, trade secrets or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
1.5. “Service(s)” means all products created and developed by The Arden Company.
1.6. “Order” means a subscription to our Services made via our website, online form or Quote.
1.7. “Subscriber” means any entity paying a subscription to access our Services and registered with The Arden Company as such.
1.8. “User” means a person or entity having an account allowing access to use the Service(s).
1.9. “User Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components created or provided by a User through its use of the Service(s).
2. Grant of License
2.1. Customer’s License. The Arden Company hereby grants to Customer a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to use the software, tools, features and services that are provided as part of the Services solely to create, use, distribute and administer the Service(s).
2.2. Reseller’s License. The Arden Company hereby grants to Reseller a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to use the software, tools, features and services that are provided as part of the Services to create, use, distribute and administer (and allow its customers to create, use, distribute and administer) the Service(s) as permitted herein.
3. Subscription Plans: Payments and Refunds
3.1. Subscription Plans. We may provide you with various subscription plans to choose from. You may find the subscription plan features at https://www.arden-co.com/legal.
3.2. Support Services. Upon payment of the relevant fees you may receive certain support services pursuant to the Support Terms and Conditions available at https://www.arden-co.com/legal and which are incorporated herein by reference.
3.3. Payment. A valid credit card is required. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
3.4. Refunds. We will not issue any refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
3.5. Changes to Fees and Services. The Arden Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. The Arden Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services. From time to time, The Arden Company may issue an update to the The Arden Company Website which may add, modify, and/or remove features. These updates may be pushed out automatically with little or no notice, although The Arden Company will do everything in its power to notify you in advance of an upcoming update, including details on what the update includes.
4. Intellectual Property
4.1. The Arden Company IP. The Arden Company retains all right, title and interest in and to the Website and Services, and any derivatives thereof, including any Intellectual Property Rights contained and/or made available therein or in connection thereto. You agree not to remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on our Website or Services. The foregoing does not apply to Resellers who have opted for our white label option. The look and feel of the Services is owned by The Arden Company, Inc. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from The Arden Company.
4.2. Software. The Arden Company may make certain software available to you through the Services. If you download or otherwise use the software from the Service, the software, including all files and images contained in or generated by the software, look and feel, HTML/CSS, visual design elements, and accompanying data (collectively, “Software”) are deemed to be licensed to you by The Arden Company, for your personal and noncommercial use only. The Arden Company does not transfer either the title or the Intellectual Property Rights to the Software, and The Arden Company retains full and complete title to the Software as well as all Intellectual Property Rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form.
4.3. User Content. We claim no intellectual property rights over the User Content. Your User Content remain yours. However, by using the The Arden Company Website to create your Service(s), you agree to allow others to view and share your User Content. The Arden Company does not pre-screen User Content, but The Arden Company and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any User Content that is available via the Services. When accessing or using the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any party’s Intellectual Property Rights. You agree to abide by laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property, and you shall be solely responsible for any violations of any laws and for any infringements of any Intellectual Property Rights caused by any content you provide, post, or transmit, or that is provided or transmitted using your user name or user ID. The burden of proving that any User Content does not violate any laws or Intellectual Property Rights rests solely with you.
4.4. Marks and Publicity. The Arden Company, Customer, and Reseller trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. We may: (i) use the Customer or Reseller’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer or Reseller’s statements in one or more press releases; and/or (iii) make such other use of the Customer or Reseller’s name and/or logo as may be agreed between the parties. Additionally, we may include Customer or Reseller’s name and/or logo within its list of customers for general promotional purposes. We will comply with Customer or Reseller’s, as applicable, trademark use guidelines as such are communicated to us in writing and shall use the Customer or Reseller’s Marks in a manner which is consistent with industry practice. No party grants to any of the other parties any title, interest or other right in any Marks except as provided in this Section.
4.5. Suggestions/Improvements to Services. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by you regarding the Services will be owned by The Arden Company, and you hereby agree to assign any such rights to The Arden Company. Nothing in these Terms will preclude The Arden Company from using in any manner or for any purpose it deems necessary, the know- how, techniques, or procedures acquired or used by The Arden Company in the performance of the Services.
4.6. Reservation of Rights. The Arden Company reserves all rights not specifically granted herein.
5.1. Definition. “Confidential Information” includes all information disclosed by us, before or after the subscription start date and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by us that contains, reflects, or is derived from such information.
5.2. Exceptions. Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, no party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
5.3. Ownership of Confidential Information. Nothing in these Terms will be construed to convey any title or ownership rights to the Services or other Confidential Information to you or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the The Arden Company’ Confidential Information. You shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose the The Arden Company’ Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these Terms.
5.4. Non-Disclosure. You agree at all times to use all reasonable efforts, but in any case no less than the efforts that you use in the protection of your own Confidential Information of like value, to protect Confidential Information belonging to us. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
5.5. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
6.1. No Malicious Code. To the knowledge of The Arden Company, the Website does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Website, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Website in any manner. This warranty will be considered part of and covered under the provisions of these Terms. You must: (i) notify The Arden Company promptly in writing of any nonconformance under this warranty; (ii) provide The Arden Company with reasonable opportunity to remedy any nonconformance under the provisions of these Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.
6.2. Authorized Representative. Customer and Reseller warrant that each has the right to enter into these Terms and that these Terms and the Orders placed hereunder will be placed by an authorized representative of each entity.
6.3. Services Warranty. The Arden Company warrants that all services performed hereunder shall be performed in a workmanlike and professional manner.
6.4. Disclaimer of Warranties. ANY AND ALL OF SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED BY The Arden Company TO YOU ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 6 OF THESE TERMS. The Arden Company MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NEITHER The Arden Company (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER OR RESELLER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
7.1. The Arden Company Indemnity. The Arden Company will defend at its expense any cause of action brought against Reseller or Customer, to the extent that such cause of action is based on a claim that the Services infringe a United States patent, copyright, or trade secret of a third party. The Arden Company will pay those costs and damages finally awarded against Reseller or Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by The Arden Company. Reseller and Customer may retain its own counsel at their own expense.
7.2. No Liability. The Arden Company will have no liability for any claim of infringement based on: (i) Services which have been modified by parties other than The Arden Company where the infringement claim would not have occurred in the absence of such modification; (ii) Customer or Reseller’s use of the Services in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer or Reseller’s use of the Services outside the permitted scope of these Terms.
7.3. Remedies. Should the Services become, or in The Arden Company’ opinion are likely to become, the subject of a claim of infringement, The Arden Company may, at its option, (i) obtain the right for Customer or Reseller to continue using the Services, (ii) replace or modify the Service so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Service. Upon such termination, Customer or Reseller shall cease accessing the Services and The Arden Company will refund to Customer or Reseller as Customer or Reseller’s sole remedy for such service termination, the fees paid by Customer or Reseller for the terminated service for the past twelve (12) months. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF The Arden Company WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SERVICES.
7.6. Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof;(ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.
8. Limitation of Liability
• 8.1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL The Arden Company BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER OR RESELLER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
8.2. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL The Arden Company BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
8.3. THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. Term and Termination
9.1. Term. These terms will be in effect from the time that the Services are activated and will continue until the termination of your Order.
9.2. Termination by Reseller or Customer. You must cancel your subscription before your Order renewal date and prior to debiting of funds to The Arden Company in order to avoid the next billing. To cancel, go to the “Dashboard” on our Website and follow the instructions for cancellation. All cancellations must be made in writing, via email, to email@example.com. Sending an email to any other The Arden Company email address shall not constitute as a proper notification of cancellation.
9.3. Termination by The Arden Company. These Terms and any usage rights granted hereunder may be terminated by The Arden Company: (i) if you fail to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to you if you fail to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) you file a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
9.4. Effect of Termination. Upon termination of these Terms, Reseller, Customer, and User shall no longer access the Services and shall not circumvent any security mechanisms contained therein.
9.5. Other Remedies. Termination of Terms will not limit us from pursuing other remedies available to us, including injunctive relief, nor will such termination relieve your obligation to pay all fees that have accrued or are otherwise owed by you under these Terms.
10. Your Obligations
10.1. You agree to comply with our Acceptable Use Policy, available at https://www.arden-co.com/legal and which is incorporated herein by reference.
10.2. The Customer and Reseller shall be obliged to inform their respective Users before the beginning of use of the Services about the rights and obligations set forth in these Terms. The Customer or Reseller, as applicable will be liable for any violation of obligations by their Users or by other third parties who violate obligations within the Customer or Reseller’s control.
10.3. You are obliged to keep the login names and the passwords required for the use of the Services confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct your Users to observe copyright regulations.
10.4. Before entering its data and information, the Users are obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Users shall be responsible for the entry and the maintenance of its data.
10.5. The Arden Company has the right (but not the obligation) to suspend access to the Services or remove any data or content transmitted via the Services without liability (i) if The Arden Company reasonably believes that the Services are being used in violation of these Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that The Arden Company shall use commercially reasonable efforts to notify you prior to suspending the access to the Services as permitted under these Terms, or (iii) as otherwise specified in these Terms. Information on our servers may be unavailable to you during a suspension of access to the Services. The Arden Company will use commercially reasonable efforts to give you at least twelve (12) hours’ notice of a suspension unless The Arden Company determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect The Arden Company or its customers.
10.6. If you engage in offerings, dealings or transactions with End-Users, you must comply with all applicable consumer protection laws.
10.7. You may not access the Services if you are a direct competitor of The Arden Company, except with The Arden Company prior written consent.