Terms and Conditions
1. Acceptance of Terms
This TOU applies to all services offered by Boomerang and used by you, including BlastWizard™ our web-based, state-of-the-art e-marketing system for do-it-yourselfers (the “Services”). To use our Services, you must complete our registration form on this website, providing accurate, current, and complete information about you, and maintain and promptly update such registration information. You agree to use our Services only in connection with one or more mailing lists that you own or are lawfully licensed to use.
3. Your Obligations and Content of Messages
In consideration of your use of the Services, you agree to provide accurate, current, and complete information about you as may be prompted by a registration form on this website and further agree to maintain and promptly update such registration information, and to keep it accurate, current and complete. You agree and acknowledge that it is your responsibility to maintain the security of your password and all account information, including lists, and you accept all risks of unauthorized access to your registration and account information by individuals or entities unrelated to Boomerang.com.
The Services may not be used to send unsolicited email, sometimes known as ‘spam’. You agree that you will not import, access or otherwise use third party mailing lists, harvested lists or distribute unsolicited email, in connection with your use of the Services.
You agree to import, access or otherwise use only opt-in lists (“Permission Based Lists”) in conjunction with the use of the Services. In addition to providing your own lists, Boomerang offers services to build confirmed opt-in lists for your email programs, as well as to supplement your existing lists. Note that registration for an event, participation in a survey or purchase of a product alone does not constitute opt-in agreement to receive emails unrelated to the survey, event or product transaction. An event registrant, survey respondent or purchasing consumer must explicitly opt into your list by clicking a ‘Subscribe to my email list’ link, a similar subscribe link or opt-in form. You agree that you will not use any other lists in connection with your use of the Services. You agree that Boomerang will scan your lists to determine suitability for use in email marketing programs prior to use and to help ensure compliance with this section.
You agree that you are the sole / designated “sender” (as defined by CAN-SPAM Act of 2003 or by any updated or enacted rules under such act) of any email message sent by you using the Services. You agree that neither the “From” or “Subject” lines will contain false, deceptive or misleading information (as defined by the CAN-SPAM Act of 2003 or by any updated or enacted rules under such act).
You may not rent or resell access to the Services or otherwise send emails on behalf of any third party using your account. You represent that your lists are owned and controlled directly by you for your use alone. Reselling, renting or allowing third parties to use your account is strictly prohibited, is authorized by Boomerang permission only and additional fees may apply.
You have the option to store your content and lists on our system. This storage service is designed solely for use with the email Services that Boomerang provides. In keeping with standard practices to safeguard data, we strongly encourage you to keep current backup copies of these files yourself. You have sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Services and are solely responsible for the content of any messages and attachments sent using the Services, and any consequences thereof. For every email sent in connection with the Services, you agree and acknowledge that Boomerang may add the identifier “powered by Boomerang.com” to the message.
BOOMERANG WILL AUTOMATICALLY ADD A LINK TO EVERY EMAIL SENT IN CONNECTION WITH ITS SERVICES THAT WILL ALLOW RECIPIENTS THE OPPORTUNITY TO OPT-OUT OF SIMILAR COMMUNICATIONS IN THE FUTURE. If a recipient chooses to opt-out in a different manner than by using the provided opt-out link, such as a phone call to your company or by replying to the email, you are required by the CAN-SPAM Act of 2003 to remove those recipients from your list within 10 days of receipt of the unsubscribe request. If you reside in a territory other than the U.S., it is your obligation to additionally abide by any local spam laws, rules or regulations.
Emails sent using our Services may result in the filing of abuse complaints or the addition of Boomerang-owned IP addresses to email Blacklists by recipients of unwanted emails. You acknowledge that your use of our Services may be terminated immediately, without refund, if it is determined in the sole discretion of Boomerang that your use of the Services has generated abuse complaints or have caused Boomerang’s IP addresses to be added to Blacklists. Further information regarding Blacklisting is available as part of the Acceptable Use Policy, which is available at http://boomerang.com/Anti-Spam-Policy.aspx and is incorporated herein by reference.
Images hosted by and on Boomerang’s servers are to be used solely in conjunction with Boomerang’s email marketing Services. Boomerang does not authorize or permit the use of hosted images for any purpose outside of the use of Boomerang’s Services. In the event Boomerang creates or provides images to you, Boomerang grants you a limited, non-exclusive, non-transferable sublicense for use with Boomerang’s Services.
5. Representations and Warranties
You represent and warrant that all of the information provided by you to Boomerang to use the Services is correct and current and you are at least 18 years of age, having the right, power and authority to form a binding contract and enter into this agreement and to perform the acts required of you hereunder. Persons under 18 years of age are not authorized to use the Services.
6. Free Trial Period
Once you have registered for our Services, Boomerang will provide you with a one-time free trial period to use our Services (the “Free Trial Period”). The length of any such Free Trial Period may vary from time to time, and will be indicated at the time you register for your subscription. You acknowledge and agree that use of the Services during the free trial is subject to your compliance with this TOU herein and you agree to be bound and comply with all of the terms. You further agree that you are entitled to only one such Free Trial Period. After the Free Trial Period expires, you may continue your subscription subject to our monthly subscription-based plan, including applicable fees for such Services.
Except for Services provided in the Free Trial Period, you will be required to provide Boomerang with credit card information for payment for Services. Your credit card will be billed immediately in US dollars according to the Service Plan that you select upon completion of the Free Trial Period. Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the beginning of each subsequent month. At the time of renewal, your credit card will be charged our then-current fee for the applicable Service Plan. If the fee for that Service Plan has increased, Boomerang will notify you of the change at your designated email address at least fourteen (14) days prior to renewal, so that you have an opportunity to elect not to renew. Should you continue with our monthly subscription-based plan for Services, you hereby authorize Boomerang to charge your credit card as provided above. In the event Boomerang is unable to submit and have payment accepted using the credit card information you provided to us, you acknowledge that Boomerang has the right to immediately suspend all Services to you until payment is received.
All payments must be made by a valid credit card that is accepted by Boomerang. We do not accept cash, checks or any other payment form.
You are responsible for paying any governmental taxes imposed on your use of the subscription Service(s), including, but not limited to, sales, use, transfer, value-added or any other taxes. BOOMERANG RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY BOOMERANG, UPON EFFECTIVE NOTICE TO YOU SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your subscription in accordance with the terms of this TOU.
8. Acceptable and Unacceptable Uses
Boomerang’s email Services may be used for any legal activity that does not conflict with any of the Unacceptable Uses described below. The following is a non-exclusive list of content and behaviors that constitute Unacceptable Uses:
- The sending of unsolicited email (spamming) including without limitation the sending of advertisements or solicitations that do not clearly and conspicuously identify the message as an advertisement or solicitation, or do not include your valid physical postal address.
- Content that commits acts of copyright, trademark, patent, trade secret or other intellectual property infringement.
- Content that is offensive to others, including content which aggravates, harasses, threatens, defames, or abuses others.
- Content that contains or links to nudity, pornography, adult content, sex, extreme violence, or foul language.
- Content that contains, links to, or participates in pyramid schemes, gambling, raffles, lotteries, and so forth.
- Content that posts or discloses personal identification information or private information of individuals, or in connection with materials directed toward individuals under the age of 13 without verifiable parental consent.
- Content that provides, sells, or offers to sell the following: controlled substances, illegal drugs and drug contraband, alcohol, weapons, pirated materials, pornography or sexual products, programs to attack others, illegal goods, escort services, instructions on making, assembling, or obtaining illegal goods or weapons, information used to break copyright or trademark violations, to destroy others’ property, or to harm any people or animals.
Boomerang reserves the right to prevent emails that contain subject lines or content which include any of the unacceptable uses above from being deployed via Blast Wizard. Boomerang reserves the right to immediately terminate your account if it determines, in its sole discretion, that you are violating any of this TOU herein.
9. Compliance With Laws
It is your sole responsibility to ensure compliance with all applicable laws including, but not limited to:
- The CAN-Spam Act of 2003
- The TCPA of 1991 (regarding, among other items, unsolicited facsimile traffic)
- All FCC rules and regulations – see www.fcc.gov
- All FTC rules and regulations – see www.ftc.gov
- The Digital Millennium Copyright Act of 1998
- The Children’s Online Privacy Protection Act
- Child Online Protection Act
- The Michigan Children’s Protection Registry Act of 2005
- The Utah Child Protection Registry Act of 2005
You may unsubscribe or otherwise terminate your use of the Services by taking the appropriate action within BlastWizard. As set forth in this TOU, Boomerang may terminate your use of the Services at any time in the sole discretion of Boomerang as a result of your violation of this TOU, including without limitation, Boomerang’s receipt of abuse complaints, its IP addresses being added to email Blacklists, and any other actions by you determined to constitute an Unacceptable Use hereunder. In the event of a termination of Services, whether by you or Boomerang, you will not be entitled to any refund for fees paid. Boomerang reserves the right to delete and permanently remove any content or data stored by you in connection with your use of the Services.
Boomerang reserves the right to purge archived data associated with your account after 30 days past the last date of your use of Services. Boomerang will continue to process opt-out link requests for up to 30 days post termination per the CAN-SPAM Act of 2003. After 30 days, it is your responsibility to honor further opt-out requests.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, BOOMERANG EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
BOOMERANG DOES NOT MAKE ANY WARRANTY THAT ITS SERVICES WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, SECURE, OR ERROR FREE. BOOMERANG DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES.
13. Service Corrections; Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL BOOMERANG ITS SUBSIDIARIES, OFFICERS, DIRECTORS, PARTNERS, AFFILIATES, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICES, THE PERFORMANCE THEREOF, OR ANY OTHER DAMAGES. IN NO EVENT WILL BOOMERANG BE LIABLE FOR ANY DAMAGES IN EXCESS OF WHAT BOOMERANG RECEIVED FROM YOU FOR BOOMERANG’S SERVICES.
If Boomerang does not perform the Services, your remedy will be for Boomerang to remedy, correct or otherwise repair any affected portion of Services. In the event such affected Services cannot be remedied by Boomerang, Boomerang’s maximum liability under this TOU is limited to the amount collected for the affected portion of Services.
14. No License
The proprietary software associated with the Services (“Software”), including any enhancements or modifications thereto, is the sole property of Boomerang and you are not granted any license or rights other than those recited herein. You may not copy, modify, distribute or reverse engineer, decompile or disassemble the Software, or otherwise disable, modify, or create derivative works based on the Software. You may not use the Software for any commercial purpose other than in connection with the Services and as permitted hereunder, and you may not transfer, copy, distribute, reproduce, sell, assign or convey it to any third party.
The name “Boomerang” is a trademark owned by Boomerang.com, Inc. The trademarks, tradenames, service marks and logos and other designations or derivatives of the trademarks used and displayed on this web site are trademarks of Boomerang.com, Inc. and others in the United States and other countries. You acknowledge Boomerang’s rights in the trademarks and agree that no display or use of such trademarks may be made without the express prior written permission of Boomerang or other trademark owner, as the case may be.
You agree to defend, indemnify and hold harmless Boomerang, its subsidiaries, officers, directors, partners, affiliates, employees, agents, successors and assigns (the “Indemnified Parties”) from and against all claims, demands, actions, causes of action, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) suffered by any of the Indemnified Parties brought by any third party arising out of or relating to: (a) a breach by you of any of your duties, obligations, representations, or warranties hereunder; (b) out of content you post, transmit or otherwise make available through the Service, your use of the Service; and/or (c) your violation of any third party rights.
16. Relationship Between You and Boomerang
The relationship between you and Boomerang is solely that of purchaser and vendor and neither party is or may be construed as a partner, joint venture, employee, agent, representative, franchisee or participant of or with the other party for any purpose whatsoever and neither party will have any right to represent the other party or bind the other party in any capacity.
17. Entire Agreement
The TOU constitutes the entire agreement between you and Boomerang relating to the subject matter hereof and cancels and supersedes any prior versions of this TOU.
Any express waiver or failure to exercise promptly any right under this TOU will not create a continuing waiver or any expectation of non-enforcement.
Any term or provision of this TOU that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms and provisions hereof. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this TOU shall be enforceable as so modified.
20. Attorney’s Fees
If any legal action or other legal proceeding relating to this TOU is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
Any controversy regarding the subject matter of this TOU must be submitted to binding arbitration in Santa Clara County, California under the Commercial Arbitration Rules of the American Arbitration Association.
This TOU shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this agreement, shall be in a federal or state court located in Santa Clara County, California.