General Terms of Service

Fine Print

Last Updated: 06.11.2007

Introduction

These Terms of Service (TOS), along with our Acceptable Use Policy (AUP), and Privacy Statement, both herein incorporated by reference, provide a set of policies and conditions that bind us. These Terms of Service is between Sevence, LLC, d/b/a BoomTime (hereinafter “BoomTime,” "Company," "we," "our," or "us") and you, our customer (hereinafter "Customer," "you" or "your").

For questions, comments or suggestions, please contact us at:

Sevence, LLC, d/b/a BoomTime
P.O. Box 35160
Albuquerque, NM 87176
Toll-Free: 800.940.0402
Fax: 505.212.0458
www.boomtime.com

BY ACCESSING OR USING THIS WEBSITE, OR ENGAGING US FOR SERVICES, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THESE TERMS OF SERVICE.

The Plain Meaning

We bet you hate legal contracts as much as we do. Unfortunately, one of our employees is an attorney, and insists on legal-sounding mish-mash to protect the company. So, if you’re a glutton for punishment – our attorney says we need to advise you to read the whole agreement – go ahead. For those of you who like the “Cliff Notes,” here’s the basic gist of what we want:

  • You won’t use our services for illegal or immoral purposes.
  • Know the law, especially as it relates to gift certificates. We try to keep up-to-date on the latest issues and trends, but we cannot accept liability if you are out of compliance with the laws that pertain to you.
  • What you put in is yours, what we put in is ours. For example, if you upload your own custom gift certificate design, it's yours; but the default gift certificate designs we provide are ours. If you contribute logos and pictures, they are yours.
  • You’re never stuck with us, and can leave at any time. We’ll even help you leave!
  • Our responsibility is to provide you with outstanding service and keep the computers running, although because we’re human and make mistakes and are subject to random acts of strangeness, we can’t promise 100% uptime. We’ll do our best, though!
  • Your responsibility is to pay us, on time, although because you’re human and make mistakes and are subject to random acts of strangeness, we shouldn’t be shutting down your services the first time your payment is a couple of minutes late.
  • We’re not responsible for your misdeeds or harms stemming from your use of our services, and you’re not responsible for our misdeeds or harms stemming from our providing services.
  • We will never intentionally release or sell your (or your customers’) private information to a third-party, and you shouldn’t either.
  • And, most importantly, you will treat your customers with respect, professionalism and courtesy. That means, of course, answering their emails quickly and actually providing the services you sell online.

Why the lawyers can’t speak in such simple terms is beyond us, but oh … our attorney said to say that the language below overrides any conflict between our gist above, and the legal-sounding mish-mash below.

Definitions

  1. “Work Product” means, the copyrights, look-and-feel, layout, programming, material, designs, discoveries, products, programs, routines, procedures, processes, formulas, know-how, techniques, improvements, developments, drawings, notes, documents, templates, images or elements within a design, font styles, images within fonts or elements, information and materials made, conceived or developed by BoomTime alone or with others in the performance of the Services contracted, including without limitation, any and all materials provided to you hereunder by BoomTime.
  2. ”Services” means any and all Work Product, functionality, advice, consulting or other work or efforts expended, loaned, leased, rented, given or otherwise provided to you by BoomTime, whether over the Internet or otherwise.

BoomTime Responsibilities

  1. Maintenance. BoomTime shall be responsible for maintaining Services; and shall strive to keep all functionality and sensitive data secure; and shall issue updates from time to time.
  2. Support. BoomTime shall be responsible for providing documentation, training, support and access to Services.
  3. Customer Data. BoomTime agrees to not sell or intentionally release your customer data, except to third-party vendors as may be necessary to provide Services, or as required by law or compelled by court order.

Your Responsibilities

  1. Redemption and Accounting. You shall honor, according to the Gift Certificate Terms and Conditions listed at the bottom of Services, for each and every gift certificate you sell. You agree to use BoomTime to track the sales and redemption of gift certificates, or use your own method of accounting, so that you can keep track of the outstanding liability associated with unredeemed gift certificates. If you sell, transfer ownership, or close your business, you agree to factor in any unredeemed gift certificates as a liability for the change of business.
  2. Taxes. You shall be responsible for collecting and paying any and all taxes of a transactional nature, including but not limited to gross receipts, sales and use taxes that may be required in the jurisdiction(s) where you are registered, located, or conducting business.
  3. Legal Compliance. You are responsible for compliance with all applicable federal, state and local laws, including but not limited to taxation and gift certificate redemption. BoomTime is not responsible for your failure to meet any and all notice requirements and redemption periods that may be required by law.
  4. Credit Card Transaction Processing. You agree to abide by the following terms and conditions related to Credit Card Transaction Processing:
    • You shall indemnify and hold BoomTime harmless from any relevant bank fees, bank charges, chargebacks or any other fees, charges or penalties related to your acceptance of credit cards over the Internet or for your business.
    • You are responsible for establishing and maintaining your own merchant account and bank account, as necessary, to process credit card transactions over the Internet or in your store.
    • BoomTime is not responsible for fraudulent charges or illegal activity you may encounter over the Internet, including but not limited to fraudulent purchase or use of gift certificates.
  5. Maintaining Successful Customer Relationships. You agree to abide by the following requirements as it relates to business ethics and operational guidelines:
    • You agree to timely respond to the online requests and email of us, as well as your customers. This is especially important if you are using our Appointment Request or any scheduling functionality.
    • You agree to honor and fulfill all the products and services you sell over the Internet.
    • You agree to maintain, publish and adhere to a privacy policy at least as protective to customer information as BoomTime's; or alternatively, to review the privacy policy we publish on your website, and alert us to any corrections you believe must be made. You understand and agree that your privacy policy is a contract between you and your customers, and you will abide by that contract, as well as indemnify and hold BoomTime harmless for any breaches you commit against that privacy policy.
    • You agree to maintain, publish and adhere to a Terms of Service compatible with BoomTime’s; or alternatively, to review the various Terms of Service we publish on your website, and alert us to any corrections you believe must be made. You understand and agree that the various Terms of Service contained on your website is a contract between you and your customers, and you will abide by that contract, as well as indemnify and hold BoomTime harmless for any breaches you commit against any of the Terms of Service contained on your website.
    • You agree to keep credit card information secure and only make it available to those few employees as necessary to process legitimate credit card transactions; and you further agree to adhere to any security requirements imposed by your merchant account, payment gateway or any credit card company.
    • You are responsible for ensuring that the products or services you sell or make available are not illegal, are accurately represented and that the content of your store and related offerings do not infringe the rights of others.
    • You agree we are not responsible for any disputed business transaction/s resulting from your online and e-commerce activities.
  6. Timely Reporting of Problems. You agree to notify BoomTime as quickly as practical, when you become aware of any critical failure in Services or breach of security.
  7. Adherence to BoomTime’s Online TOS and AUP. You agree to read and abide by these Terms of Service and the AUP located on our BoomTime. You acknowledge that these agreements are intended to protect the quiet enjoyment of Services for all BoomTime customers, and that a violation of either of these agreements could result in immediate termination of Services without notice to you. You further agree that we may amend or make modifications to our Terms of Service and AUP from time to time and without notice to you.

National Listing Service

BoomTime assumes you wish to maximize your sales and prominence on the Internet. One way to do this, is put your website on national directories and search engines to increase your exposure. Some national directories require a commission to list your website and/or services.

  1. Opt-out for New Customers. If you are a new customer to BoomTime, we will assume you want to participate in the National Listing Service, unless you opt-out of participation. You can change your opt-out status at any time, and as frequently as you wish.
  2. Additional Commissions Apply. If you participate in the National Listing Service, any of your gift certificates sold on a national directory will be assessed a larger commission. Please see BoomTime Pricing for more information. BoomTime reserves the right to change this commission at any time, after we have submitted notice to you.
  3. All or Nothing. The entire purpose of the National Listing Service is to place your website on as many directories on the Internet as possible. BoomTime cannot control which websites list your website.

Fees and Payment Policies

  1. Fees. You will pay to BoomTime the fees in accordance with the fees listed on our website. All fees are non-refundable, except as otherwise provided herein.
  2. Payment by Credit Card. You hereby grant BoomTime permission to charge your credit card for any and all Services requested on a recurring basis.
  3. Enforcing Payment. We reserve the right to take any action we deem necessary to secure payment for Services, including but not limited to suspending or deactivating any and/or all Services. You agree to indemnify and hold us harmless from any liability resulting from our actions attempting to secure payment for Services.
  4. Taxes. All fees are exclusive of all taxes, duties or levies; however they are designated or computed. You will be responsible for, and pay all taxes based on payments due as a result of paying for and/or receiving Services, which may include but are not limited to gross receipts, sales, use, or value-added taxes, duties, withholding taxes and other assessments now or hereafter imposed, exclusive of taxes based upon BoomTime’s net income.

Term

  1. Term. Unless terminated as set forth herein, these Terms of Service will commence on the first day you receive any amount of Service from BoomTime, and will continue for one month. Thereafter, this Agreement will automatically renew on a month-to-month basis until terminated by either Party per the terms of this Agreement or with at least thirty (30) days notice to the non-terminating Party. The initial term and any renewals will collectively be referred to as "Term."
  2. Effect of Termination. Upon termination of Services, the following shall apply:
    • All rights and obligations provided under the sections entitled “Confidentiality” and “Indemnity, Warranty and Liability” shall survive termination for any reason.
    • Neither Party shall be liable to the other for damages, losses, costs or expenses whatsoever on account of such termination arising from or in connection with the loss of prospective sales, expenses incurred or investments made with the establishment, development or maintenance of either Party’s business.

Customer Data & Co-branding

  1. Customer Data. You agree BoomTime may aggregate customer data for its own purposes, however under no circumstances shall aggregation include information that personally identifies you or your customers. You also agree customer data may be used individually by each of your customers, as may be necessary to participate in additional services provided by BoomTime, its third-party vendors, or its business partners.
  2. Co-Branding. You agree that BoomTime may place a logo on any and all web pages served up by BoomTime on your website, which may be that of BoomTime, or one of its third-party vendors or business partners. If you object, you may terminate your Services with BoomTime, if BoomTime is either unwilling or unable to remediate the objection.
  3. Unified Login. You understand and agree that any signup and/or login necessary for Services may feed, relate, participate, coordinate or share a larger customer database maintained by BoomTime, its third-party vendors or its business partners.

Account Ownership

The account owner is the individual or company listed in our database as the party responsible for paying for the account and listed as the account credit card holder, unless a different name has been authorized to make administrative account decisions. The account holder is responsible for (i.e. carries the liability associated with) unredeemed gift certificates.

We are not liable for any account disputes that may arise between various parties holding your account login information when the information has been distributed by the verified account holder. We are not responsible for any changes made to the account or any information that has been modified by you, or any parties authorized by you, to access BoomTime.

We are not responsible for errors or omissions to your account through BoomTime. You understand and acknowledge that errors entered into BoomTime will show up immediately on your website.

Complaints Against Our Customers

Generally speaking, unless we are required by law, we respond to third-party complaints or notices by submitting the information to you and asking you to respond appropriately.

We do not monitor the website content or email of our customers, nor do we take responsibility for the content or information contained on your website(s) or email(s). In limited situations, as outlined in these Terms of Service, we will review website content or email to validate compliance with our AUP.

We will use our best judgment in determining the sufficiency and adequacy of subpoenas, and you agree we are not liable to you in instances were we comply with a subpoena, and it later turns out the subpoena was improper, not legally sufficient or not adequate.

Emergencies & Use Affecting Others

We reserve the right to take any proactive steps we deem necessary to maintain the security, connectivity, performance and services of our Customers, including but not limited to actions requiring us to suspend our services to you, shut down our network, or review any content using our Services.

In rare instances, we may need to completely delete Services to you because of some significant failure, security breach or other emergency. In such cases, we do our best to backup any data, but we cannot guarantee a full restore of your data.

Delegation of Duties

We reserve the right to delegate the rights or duties of these Terms of Service to a third-party, as well as transfer your account in the sale of assets or accounts to another organization. You agree that your Contract for Services may be transferred by us to another without limitation, and your duties and obligations under these Terms of Service shall not diminish under any circumstances involving a change of control, forfeiture, exchange of assets or bankruptcy (hereinafter “Change of Control”) where performance for Services is the same, or substantially similar to, Services before the Change of Control occurred.

Proprietary Rights & Intellectual Property

The Parties intend and agree that ownership in any and all Intellectual Property remain with the Party that created or introduced the relevant material, and in particular (i) marks that uniquely identify you reside with you, and (ii) any and all Work Product and other copyrightable works created by BoomTime and/or which uniquely identify BoomTime reside exclusively with BoomTime.

  1. Ownership. You and BoomTime expressly agree that all Work Product shall remain the sole and exclusive property of BoomTime, and BoomTime herein agrees to provide you with a non-exclusive, non-transferable license to use Work Product for as long as you remain a customer in good standing.
  2. Company Supplied Material. Nothing in these Terms of Service shall be construed to convey rights or title to BoomTime of materials that are supplied by, or created by, you. You shall maintain all rights in your trademarks, graphics, content and derivative works.
  3. BoomTime Supplied or Licensed Material. Many images and stock photography have been purchased or created by BoomTime for use on your website only. BoomTime hereby grants you a non-exclusive right to use any stock photography or images for your website only, while you remain a customer in good standing. It is a violation of this Terms of Service, as well as any relevant third-party licenses, to use any images or photos supplied by BoomTime for any other purpose than your website. Furthermore, you hereby agree to remove and forever discontinue using any images or photos supplied by BoomTime, upon the request of BoomTime.
  4. Program Functionality. BoomTime has expended considerable time and effort creating its Work Product. BoomTime will make this functionality available to you for as long as you remain a customer in good standing, and we exclusively reserve and retain all rights and title to Work Product. BoomTime may remove this functionality from your website upon termination of Services or if you fail to remain a customer in good standing, without notice and without recourse.
  5. Independent Contractor Relationship. BoomTime is an independent contractor for the purposes of US Copyright Law.

Confidentiality

  1. Defined. “Confidential Information” shall mean all information disclosed by either Party to the other Party in oral, written or machine-readable form, which has value because it is not generally known and the owner uses reasonable efforts to protect it and identify it in writing as confidential. Confidential Information also includes any information that has been disclosed by a third-party that is required to be treated as confidential. All Confidential Information shall be marked as such or designated as such in writing within thirty (30) days following disclosure to either Party. Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party; or (v) is disclosed by operation of law. All Confidential Information shall remain the exclusive property of the discloser or its licensors.
  2. Preserving Confidentiality. Each Party hereby agrees that it shall, and cause its personnel to, not use any Confidential Information received from the other Party other than as expressly permitted under these Terms of Service or expressly authorized in writing by the other Party. Each Party shall use the same degree of care to protect the other Party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party shall disclose the other Party's Confidential Information to any person or entity other than its officers, employees and independent contractors who are directly involved in performing the Services and have a specific need to know such information in order to effect the intent of these Terms of Service and who have entered into written confidentiality agreements with that Party consistent with and no less restrictive than this section.
  3. Injunctive Relief. You acknowledge that any breach of the provisions of Confidentiality may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, you agree that BoomTime will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this section.

Indemnity, Warranty and Liability

  1. Indemnity for Customer Transactions. You shall, at your expense, defend and fully indemnify and hold us harmless against any and all claims or harms resulting from your use of our Services, including but not limited to government actions alleging improper handling of gift certificates or illegal gift certificate sales; Consumer allegations of fraud, misrepresentation, non-performance or non-delivery; and any other manner or means of harm, expense, penalty, tax, or punitive or compensatory measure resulting from the transactions between you and your customers, regardless of (1) whether or not BoomTime had knowledge of, or should have known, of the claim or harm; (2) whether BoomTime had been notified of the claim or harm; (3) whether BoomTime could have taken action to mitigate the claim or harm; or (4) whether BoomTime contributed or factored in the claim or harm.
  2. Indemnity for Infringing Work Product. Each Party shall, at its expense, defend and indemnify the other Party against a claim that any information, design, specification, instruction, software, data or other material furnished to the other Party that infringes a United States copyright or patent and will pay all losses, liabilities, damages, claims and related expenses (including attorney fees) either awarded by court or agreed to in an out-of-court settlement. Notwithstanding the above, BoomTime shall have no liability hereunder for any claim of infringement based on (i) modifications, adaptations or changes to any Work Product not made by BoomTime, (ii) the combination or use of any Work Product with any materials not furnished by BoomTime, if such infringement would have been avoided by use of the Work Product alone, or (iii) the use or incorporation of any materials supplied to BoomTime by you. In the event that any portion of the Work Product is held to, or BoomTime believes is likely to be held to, infringe the intellectual property rights of a third party, BoomTime shall have the right at its sole option and expense to (i) substitute or modify the Work Product so that it is non-infringing, (ii) obtain for the Company a license to continue using the Work Product, or (iii) require the return, or discontinued use, of the infringing Work Product. If such return materially affects your ability to conduct its business, then you may elect to terminate Services. This section sets forth your sole and exclusive remedy for intellectual property infringement by BoomTime.
  3. Indemnification Procedures. If either Party becomes aware of a claim which may require indemnification, the indemnified Party will promptly notify the other Party in writing of the claim and will allow the other Party to assume full control of the defense and settlement of the claim. The indemnified Party will provide the other Party with the assistance and information necessary to defend and settle the claim.
  4. Warranty. Each Party represents and warrants to the other Party that it has the full power, right and authority to enter into and perform a relationship with the other Party. BoomTime further represents and warrants that Services will be performed in a professional manner, consistent with generally accepted industry standards. For any breach of such warranty, your exclusive remedy and BoomTime's entire liability shall be the re-performance of the Services. You must request such remedy from BoomTime in writing not more than fifteen (15) business days following the completion of the Services. You warrant that you own or have the right to provide to BoomTime any Confidential Information. EXCEPT AS SET FORTH IN THIS SECTION, BOOMTIME MAKES NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES AND WORK PRODUCT, INCLUDING THE RESULTS AND PERFORMANCE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR LEGAL COMPLIANCE.
  5. Limitation of Liability. THE MAXIMUM LIABILITY OF BOOMTIME TO YOU FOR DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY YOU TO BOOMTIME OVER THE ONE YEAR PRIOR TO ANY EVENT GIVING RISE TO SUCH DAMAGES. IN NO EVENT SHALL BOOMTIME BE LIABLE FOR (i) ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER, EVEN IF BOOMTIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (ii) FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY’S ACTIONS, FAILURE TO ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BOOMTIME SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.

Miscellaneous

  1. Relationship between the Parties. Neither you nor BoomTime is a legal representative, agent, or a partner of the other. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.
  2. Severability. In the event any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
  3. Governing Law. This Agreement shall be construed in accordance with the laws of the State of New Mexico, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.
  4. Waiver. The failure by either Party to enforce, at any time, any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
  5. Publicity. You agree that BoomTime shall be allowed to use your name on its list of customers, and disclose the same to its present and potential customers.
  6. Notice. All notices, requests, consents and other communications required or permitted under these Terms of Service shall be in writing and shall be sent by email, or registered or certified mail, postage prepaid or transmitted by telegram or telefax if confirmed by such mailing, to you or BoomTime. Either Party may change its address by written notice to the other.
  7. Force Majeure. Either Party will be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, disruptions of Internet service, and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.