Terms of Service


Thank you for your interest in using the online tools and services (the "Service") made available by BOOMITY LLC (BOOMITY) and offered through the Web site located at www.BOOMITY.com (the "Site"). These Terms of Service (“Terms") govern your use, and in the case of an organization or legal entity which you represent, such organizations or legal entity’s use, of the Service and the Site (collectively, the BOOMITY Network). Please read these Terms carefully. By using the BOOMITY Network, you are stating that you have read and understand, and agree to be bound by, these Terms. If you do not agree to these Terms, you are not permitted to use the BOOMITY Network.




Your Responsibilities


You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the BOOMITY Network and for paying all charges related thereto. When you register to become a member of the BOOMITY Network, BOOMITY collects certain personal information about you and the users of your website. You agree that BOOMITY may use any information BOOMITY obtains about you and the users of your website in accordance with the provisions of the Site’s Privacy Policy. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. In addition, you agree not to use the BOOMITY Network to: (a) violate any local, state, national, or international law or regulation; (b) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (d) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) stalk, harass, or harm another individual; (f) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (g) interfere with or disrupt the BOOMITY Network or servers or networks connected to the BOOMITY Network, or disobey any requirements, procedures, policies, or regulations of networks connected to the BOOMITY Network.




User Submissions


BOOMITY does not claim ownership of any information, data, text, software, music, sound, photographs, graphics, video, messages, tags or other materials that are submitted for display or distribution to others through the BOOMITY Network (collectively, User Submissions). As between BOOMITY and you, you own all rights to your User Submissions. However, you grant to BOOMITY and BOOMITY’s affiliates, representatives, and assigns an irrevocable, perpetual, non-exclusive, fully-paid, world-wide, license (sub-licensable through multiple tiers) to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (in whole or in part) in any format or medium now known or later developed; provided, however, that with respect to private groups the foregoing license shall at all times be subject to Section 3 of these Terms. Subject to Section 3 of these Terms, BOOMITY reserves the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes. BOOMITY does not pre-screen User Submissions and you agree that you are solely responsible for all of your User Submissions. BOOMITY is not required to host, display, or distribute any User Submissions, and may remove at any time or refuse any User Submissions. BOOMITY is not responsible for any loss, theft or damage of any kind to any User Submissions. You represent and warrant that your User Submissions and BOOMITY’s authorized use thereof do not and will not infringe the rights of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal or moral rights).




Confidentiality of Private Groups


All User Submissions contained in a private group will be deemed to be the Confidential Information of the individual or entity that has established such private group (the Group Owner). BOOMITY agrees that it will use Confidential Information solely for the purpose of providing the BOOMITY Network with respect to the private group to which such Confidential Information relates. In addition, BOOMITY agrees that it will disclose Confidential Information only to (a) BOOMITY’s employees and contractors who have a need to know such Confidential Information for purposes of providing the BOOMITY Network, (b) individuals who have the appropriate password for the relevant private group and (c) individuals to whom the Group Owner has authorized or directed BOOMITY to disclose Confidential Information. Notwithstanding the foregoing, BOOMITY will not be in violation of this Section 3 with respect to a disclosure of Confidential Information that is in response to a valid order by a court or other governmental body or that is otherwise required by law, provided that BOOMITY gives the Group Owner, if permitted by law, prompt written notice of such requirement prior to such disclosure and provides reasonable assistance to the Group Owner, at the Group Owner’s expense, in efforts by the Group Owner to obtain an order protecting such Confidential Information from public disclosure. Upon removal of a private group from the BOOMITY Network, BOOMITY will return to the Group Owner or destroy all copies of any Confidential Information from such private group in BOOMITY’s possession, provided that the Group Owner requests the same in writing within thirty (30) days after such removal. In no event will the following information be considered Confidential Information under this Section 3: (a) any information that was publicly known prior to the time of disclosure to BOOMITY; (b) any information that becomes publicly known after disclosure to BOOMITY other than as a result of a breach of this Section 3 by BOOMITY; (c) any information that is already in the possession of BOOMITY at the time of disclosure to BOOMITY; or (d) any information that is independently developed by BOOMITY.




Copyright Infringement


BOOMITY respects the intellectual property rights of others. Accordingly, BOOMITY has a policy of removing User Submissions that violate copyright law, suspending access to the BOOMITY Network (or any portion thereof) to any user who uses the BOOMITY Network in violation of copyright law, and/or terminating in appropriate circumstances the account of any user who uses the BOOMITY Network in violation of copyright law. Pursuant to Title 17 of the United States Code, Section 512, BOOMITY has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright is being infringed by a user of the BOOMITY Network, please provide written notice to the following BOOMITY agent for notice of claims of copyright infringement. Jesse Berg, Vested Law, Obe Sansome Street, San Francisco, CA 94104 (415) 962-4510 jberg@vestedlaw.com Your written notice must: (a) contain your physical or electronic signature; (b) identify the copyrighted work alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow BOOMITY to locate that material; (d) contain adequate information by which BOOMITY can contact you (including postal address, telephone number, and e-mail address); (e) contain a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner's agent, or the law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Please do not send notices or inquiries unrelated to alleged copyright infringement to BOOMITY’s designated agent.




Communication Services


BOOMITY offers a number of products and offerings which may include products and offerings related to email, email marketing, bulletin board services, chat areas, news groups, forums, communities and other message or communication facilities that enable you to communicate with the public at large or which a group (collectively, Communication Services). Communication Services may not be used for the sending of unsolicited email (sometimes called "spam") or for the hosting of illegal or prohibited content. See our Anti-Spam Policy, which is incorporated into these Terms by reference.




Subject in each case to the terms listed in the remainder of these Terms, you hereby represent, acknowledge and agree that:


The Communication Services may not be used for the sending of unsolicited email (sometimes called "spam").


The Communication Services may only be used for lawful purposes.


The Communication Services may not be used for hosting content, including images and documents, that infringes on the intellectual property rights of others, including copyright, trademark and patent infringement, or that includes any obscene or libelous material or other material that violates any applicable law or regulation.


You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Communication Services.


You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Communication Services. Mere agreement of a person or entity to participate in a survey or register for an event is not consent to receive correspondence from you unrelated to such survey or event.


You acknowledge and agree that not all email messages sent through use of the Communication Services will be received by their intended recipients.


Every email message sent by you in connection with the Communication Services must contain the BOOMITY "unsubscribe" link that allows the recipient to remove themselves from your mailing list.


You will comply with the restrictions on content of email messages and activities using the Communication Services as set forth or referenced in these Terms.


You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Communication Services.


You agree that the "from" line of any email message sent by you using the Communication Services will accurately and in a non-deceptive manner identify your organization, your product or your service.


You agree that the "subject" line of any email message sent by you using the Communication Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message.


You agree to include in any email message sent by you using the Communication Services your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.


You agree that in any email message sent by you using the Communication Services you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.


In your use of the Communication Services, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.


You will adopt and maintain a legally valid privacy policy that contemplates the sharing of information with BOOMITY in accordance with the BOOMITY Privacy Policy.


Every email message sent in connection with the Communication Services must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to BOOMITY. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your BOOMITY account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and these Terms.


Without limiting the foregoing, you agree that you shall not utilize the Communication Services to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, publicly available press or media addresses or spam or unsolicited email addresses. Emails that you send through the Communication Services may generate spam complaints from recipients. As a matter of privacy, BOOMITY cannot share with you the email addresses of those who complain about your emails. You are responsible for ensuring that your emails do not generate a number of spam complaints in excess of industry norms. BOOMITY, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. BOOMITY will terminate your use of its Communication Services if BOOMITY determines that your level of spam complaints is higher than industry norms (as determined by BOOMITY).


For every email message sent in connection with the Communication Services, you acknowledge and agree that BOOMITY may add an identifying footer stating "Email Marketing by BOOMITY," "Powered by BOOMITY" or a similar message. BOOMITY prohibits the use of the Communication Services or Service by any person or entity that:


Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; dating services; adult "swinger" promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.


Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.


Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.


Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.


Posts or discloses any personally identifying information or private information about children without their consent (or their parents' consent in the case of a minor).


Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.


Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.


Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.


Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.


Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.


Markets to third party voter registration lists.


Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.




Termination


BOOMITY may terminate your BOOMITY Network membership or suspend your access to all or part of the BOOMITY Network, without notice, if you violate these Terms or you engage in any conduct that BOOMITY, in its sole and absolute discretion, believes is in violation of any applicable law or regulation or is otherwise harmful to the interests of BOOMITY, any other BOOMITY Network user, or any third party. YOU AGREE THAT BOOMITY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR REMOVING YOUR USER SUBMISSIONS OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE BOOMITY NETWORK (OR ANY PORTION THEREOF). You may discontinue your participation in and access to the BOOMITY Network at any time. BOOMITY reserves the right to investigate your use of the BOOMITY Network in the event BOOMITY, in its sole and absolute discretion, believes you have violated these Terms.




Modifications To Terms


BOOMITY may, in its sole and absolute discretion, change these Terms from time to time. BOOMITY will post notice of such changes on the Site. If you object to any such changes, your sole recourse shall be to cease using the BOOMITY Network. Continued use of the BOOMITY Network following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.




Modifications To BOOMITY Network


BOOMITY reserves the right to modify or discontinue the BOOMITY Network with or without notice to you. YOU AGREE THAT BOOMITY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD BOOMITY EXERCISE ITS RIGHT TO MODIFY OR DISCONTINUE THE BOOMITY NETWORK.




Fees


BOOMITY reserves the right at any time to charge fees for access to new BOOMITY Network content or services or to portions of the existing BOOMITY Network content or services or to the BOOMITY Network as a whole. For example, BOOMITY may offer users of the BOOMITY Network the opportunity to pay fees in exchange for increased storage capacity on BOOMITY’s servers. In no event will you be charged for access to any BOOMITY Network content or service, or to the BOOMITY Network as a whole, unless we obtain your prior agreement to pay such fees. If you do not consent to the payment of such fees, however, you may not have access to paid content or services. Details regarding the services you will receive in exchange for the payment of fees, as well as any payment terms and conditions that apply in addition to those set forth in Section 9 of these Terms, will be disclosed to you prior to your agreement to pay such fees. All such terms shall be deemed to be a part of (and are hereby incorporated by reference into) these Terms.




Subscriptions


If you subscribe to any service provided through the BOOMITY Network, you agree to pay the subscription fee identified at the time you subscribe for the subscription type you select. At the time you subscribe, you will be asked to select the time period (subject to any identified minimum period) for your subscription (the Subscription Period). At the end of the Subscription Period, unless you previously have cancelled your subscription, your subscription will automatically renew for successive Subscription Periods and (upon renewal) your credit card will be charged (or invoice will be sent) the then-applicable subscription fee for your Subscription Period. BOOMITY reserves the right at any time to change the fees it charges for subscriptions to any service provided through the BOOMITY Network (or any portion thereof). However, in no event will any such change apply to any Subscription Period for which you already have paid. It is your responsibility to determine if you would like to use any such service BEFORE subscribing. Once you have paid a subscription fee, a refund cannot be given. If, however, you are having problems accessing any service to which you have subscribed, have contacted BOOMITY, have exhausted all support options that BOOMITY provides to assist you with technical problems, and are still unable to access that service, BOOMITY will refund the subscription fee you have paid. These are the ONLY circumstances under which you will receive a refund of any subscription fee you have paid. In no event will you receive a refund if BOOMITY terminates your membership under Section 5 of these Terms.




Password and Security


You are responsible for maintaining the confidentiality of your BOOMITY Network password, and you are solely responsible for all activities that occur under your password. You agree to immediately notify BOOMITY of any unauthorized use of your password or any other breach of security related to the BOOMITY Network. BOOMITY reserves the right to require you to alter your password if BOOMITY believes that your password is no longer secure. YOU AGREE THAT BOOMITY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD.




Links


BOOMITY’s provision of a link to any other Web site or Internet resource is for your convenience only and does not signify BOOMITY’s endorsement of such other Web site or resource or its contents. YOU AGREE THAT BOOMITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, SOFTWARE, OR MATERIALS FOUND AT ANY OTHER WEB SITE OR INTERNET RESOURCE.




Disclaimer of Warranties


YOU EXPRESSLY AGREE THAT USE OF THE BOOMITY NETWORK IS AT YOUR SOLE RISK. THE BOOMITY NETWORK IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. BOOMITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE BOOMITY NETWORK (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). BOOMITY MAKES NO WARRANTY THAT THE BOOMITY NETWORK WILL MEET YOUR REQUIREMENTS, OR THAT THE BOOMITY NETWORK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU ACKNOWLEDGE THAT ACCESS TO DATA (INCLUDING, BUT NOT LIMITED TO, DOCUMENTS, PHOTOGRAPHS, AND SOFTWARE FILES) STORED BY YOU OR OTHERS ON THE BOOMITY NETWORK IS NOT GUARANTEED AND THAT BOOMITY SHALL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF DATA CAUSED BY THE BOOMITY NETWORK OR ITS UNAVAILABILITY. BOOMITY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BOOMITY NETWORK, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE BOOMITY NETWORK, OR THAT DEFECTS IN THE BOOMITY NETWORK WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BOOMITY NETWORK IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BOOMITY OR THROUGH THE BOOMITY NETWORK SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.




Limitation of Liability


YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BOOMITY OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR (OR ANYONE USING YOUR ACCOUNTS) USE OF THE BOOMITY NETWORK.




Exclusions And Limitations


Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that BOOMITY may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of BOOMITY’s liability shall be the minimum permitted under such applicable law.




Indemnification


You agree to indemnify, defend, and hold harmless BOOMITY, its parents, subsidiaries, affiliates, officers, directors, employees, consultants and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorney’s fees) that such parties may incur as a result of or arising from your (or anyone using your accounts) violation of these Terms. BOOMITY reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with BOOMITY’s defense of such claim.




Trademarks


BOOMITY and the BOOMITY design, as well as certain other of the names, logos, and materials displayed in the BOOMITY Network constitute trademarks, trade names, service marks or logos (Marks) of BOOMITY or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with BOOMITY or those other entities.




Copyrights; Restrictions on Use.


The content on the Site (the Content), including without limitation, video, text, photos, and graphics, is protected under United States and international copyright laws, is subject to other intellectual property and proprietary rights and laws, and is owned by BOOMITY or its licensors. Other than with respect to your own User Submissions: (a) the Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of BOOMITY and its applicable licensors; and (b) you must abide by all copyright notices, information, or restrictions contained in or attached to any Content.




Miscellaneous


These Terms, together with the terms of any end user license agreement to which you agree when downloading any software that BOOMITY makes available through the BOOMITY Network and any additional terms to which you agree when using particular elements of the BOOMITY Network (e.g., terms relating to the payment of fees for certain BOOMITY Network content or services), constitute the entire and exclusive and final statement of the agreement between you and BOOMITY with respect to the subject matter hereof, and govern your use of the BOOMITY Network, superseding any prior agreements or negotiations between you and BOOMITY with respect to the subject matter hereof. These Terms and the relationship between you and BOOMITY shall be governed by the laws of the State of California as applied to agreements made, entered into, and performed entirely in California by California residents, notwithstanding your actual place of residence. All lawsuits arising from or relating to these Terms or your use of the BOOMITY Network shall be brought in the Federal or State courts located in San Francisco County, California, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose. The failure of BOOMITY to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of BOOMITY and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the BOOMITY Networks or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. The terms of Sections 2,3 and 13 through 19 of these Terms, as well as any other limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the BOOMITY Network.