Terms of Services Agreement
THIS TERMS OF SERVICES AGREEMENT (“Agreement”) constitutes a legally binding agreement between you, whether personally or on behalf of another user (“User”) and Boomerang Bills, LLC (“Boomerang”), concerning User’s access to and use of Boomerang’s services, including mobile applications, websites, software, hardware, and other products and services (individually, “Service,” and collectively, “Services”). USER ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS AND ALSO BY CONTINUING TO USE THE SERVICES. IF USER DOES NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT BOOMERANG MAY MAKE TO THIS AGREEMENT IN THE FUTURE, USER MUST NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE SERVICES.
In consideration of the mutual covenants and obligations in this Agreement, User and Boomerang agree as follows:
SECTION 1: REGISTRATION
User must open an account (“Account”) with Boomerang to use the Services. During registration, Boomerang will ask User for information, including User’s name and other personal information. User must provide accurate and complete information in response to these questions, and keep that information current. User is fully responsible for all activity that occurs under the Account, including, but not limited to, for any actions taken by persons to whom User has granted or has not granted access to the Account. Boomerang reserves the right to suspend or terminate the Account if User provides inaccurate, untrue or incomplete information, or fails to comply with the Account registration requirements. Boomerang’s Services are conditioned upon User’s completion of its obligations under, and continued adherence to, this Agreement, which obligations and conditions User must complete to the satisfaction of Boomerang.
SECTION 2: Revisions, Disclosures, and Notices
Boomerang may amend this Agreement at any time, after providing User with notice that it deems to be reasonable in the circumstances, by posting a revised version of the Agreement on its website or by communicating a revised version of the Agreement to User through the Services (“Updated Terms”). The Updated Terms will be effective as of the time it is posted, but will not apply retroactively. User’s continued use of the Services after the posting of the Updated Terms constitutes User’s acceptance of the Updated Terms. Any dispute will be governed by the Agreement in place when the dispute arose. User agrees that Boomerang may provide disclosures and notices required by law and other information about User’s Account to User electronically, by posting it on Boomerang’s website, by pushing notifications through the Services, or by emailing it to the email address listed in User’s Account. Electronic disclosures and notices have the same meaning and effect as if Boomerang had provided User with paper copies. Such disclosures and notices are considered received by User within 24 hours of the time posted to Boomerang’s website, or within 24 hours of the time emailed to User unless Boomerang receives a notice that the email was not delivered. User consents to accept and receive communications from Boomerang, including e-mail, text messages, calls, and push notifications to the cellular telephone number User provides to Boomerang. These communications may be generated by automatic telephone dialing systems that will deliver prerecorded messages, including for the purposes of secondary authentication, receipts, reminders, and other notifications. Standard message and data rates applied by User’s cell phone carrier may apply to communications received by User from Boomerang. User may opt-out of receiving communications by following the unsubscribe options provided. Opting-out of receiving communications may impact User’s use of the Services.
SECTION 3: TERM OF AGREEMENT
A. The term of this Agreement is the term selected by User when registering for the Account (“Term”).
B. The Term will automatically renew an additional Term unless terminated earlier by Boomerang in its sole discretion. Boomerang may, but is not obligated to, provide User with notice, in a manner that it deems reasonable in the circumstances, of the renewal 7 days before the renewal. User may opt-out of the automatic renewal by providing Boomerang with written notice at least 1 day before the end of the then-existing Term. If Boomerang terminates this Agreement prior to the end of the then-existing Term, User will be entitled to receive a prorated refund.
C. If this Agreement or User’s Account is terminated or suspended for any reason, all rights granted to User by Boomerang will end, Boomerang may, but is not obligated to, delete User’s information and Account data stored on Boomerang’s servers, and Boomerang will not be liable to User or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of User’s information or Account data. In addition to any of User’s payment obligations, the following sections of this Agreement survive and remain in effect in accordance with their terms upon termination: 3 (Term of Agreement), 6 (Indemnification), 8 (Ownership of Content), 9 (Limitation of Liability & Release), 10 (User’s Representations and Warranties), 11 (No Warranties), 12 (Choice of Law; Forum), 13 (Miscellaneous), and 14 (Waiver of Jury Trial).
SECTION 4: COMPENSATION
By signing up for the Services, User will pay Boomerang the amounts specified in Boomerang’s current Standard Fee Schedule set forth on Boomerang’s website (“Fee Schedule”). The Fee Schedule is subject to modification by Boomerang at any time for any reason. For existing Users, any modified Fee Schedule will automatically apply upon renewal of the Term. Payments of fees will be automatically charged to User’s payment method, including credit or debit card, contained in User’s Account, and User authorizes Boomerang to make such charges, which will not be disputed by User. User authorizes Boomerang to automatically charge User’s payment method at the end of any free trial. Boomerang may, but is not obligated to, provide User with a receipt after payment. Unless otherwise provided specifically in terms agreed to with respect to Services, fees will be charged on the anniversary of the term of their Term until cancelled. User may cancel a Service at any time by sending an email to email@example.com. If User cancels a Service, User will continue to have access to that Service through the end of the current billing period, but User will not be entitled to a refund or credit for any fee already due or paid. User’s continued use of Services after a change to the fee will constitute User’s agreement to such change.
SECTION 5: NONDISCLOSURE OF INFORMATION
User agrees that it will not provide Boomerang with any information that violates any state or federal law, rule, or regulation, including any violations of the Health Insurance Portability and Accountability Act of 1996, as amended or modified (“HIPAA”).
SECTION 6: INDEMNIFICATION
User will indemnify and hold Boomerang, its officers, directors, employees, attorneys, agents, and contractors harmless from and against any and all losses, liabilities, costs, or damages, including actual attorneys’ fees, which may be sustained by them from User’s, including persons to whom User has granted or has not granted access to the Account, and its agents’, employees’, contractors’ use of the Services, including with respect to the violation of any state or federal law, rule, or regulation, including any violations of HIPAA.
SECTION 7: FORCE MAJEURE
Neither party will be liable to the other party for any delay or failure of performance under this Agreement (excluding User’s payment) that is the result of any cause that is beyond the control, and without the fault or negligence of, the nonperforming party, including but not limited to labor disputes, casualty losses, acts of God, technical interruptions of any website or communication devices that impact the Services or otherwise, or actions or failures to act by the other party or by any governmental authority.
SECTION 8: OWNERSHIP OF CONTENT
All content included in materials provided by Boomerang to User or located on any website hosted by Boomerang, and any intellectual property rights embodied therein or utilized in connection with the Services, is the property of Boomerang. None of the content may be copied, reproduced, modified, distributed, sold, broadcast, stored, or otherwise used or disclosed without Boomerang’s express written consent. User may submit comments or ideas to Boomerang about the Services (“Comments & Ideas”). By submitting Comments & Ideas, User agrees that such submission is gratuitous, unsolicited, and without restriction, that it will not place Boomerang under any fiduciary, confidentiality, or other obligation, and that Boomerang is free to use the Comments & Ideas without any additional compensation to User, and/or to disclose the Comments & Ideas on a non-confidential basis or otherwise to anyone.
SECTION 9: LIMITATION OF LIABILITY & RELEASE
In no event will Boomerang be liable to User for any indirect, special, incidental, consequential, or punitive damages, however and wherever arising, that may result from User’s use of the Services, including, without limitation, to losses incurred due to: (a) the design, administration, management, and operation of the Services; (b) the failure to award or fulfill a prize, or otherwise operate the Services in accordance with the applicable rules; (c) any inaccurate information published by Boomerang; (d) User’s dealings (business and otherwise) with its patients; (e) damages or losses of any kind, including, without limitation, injuries or death, resulting from User’s use of the Services provided by Boomerang; and (f) any other damages or losses User may incur in connection with its use of the Services including from hacking, tampering, or other unauthorized access or use of the Services or User’s Account, or the information contained therein. IN NO EVENT WILL BOOMERANG’S TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT PAID TO BOOMERANG DURING THE 6 MONTH PERIOD BEFORE THE DATE ON WHICH THE LIABILITY AROSE. Boomerang is not responsible for examining or evaluating the business practices, actions, omissions, or services of User or the patients who utilize the Services. IN THE EVENT OF A DISPUTE BETWEEN USER AND A PATIENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USER RELEASES BOOMERANG, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES OF ANY KIND, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
SECTION 10: USER’S Representations and Warranties
User represent and warrant to Boomerang that: (a) User is at least 18 years of age; (b) User is eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) any information User provides in connection with the Services, including User’s personal or business name, accurately and truthfully represents User’s personal or business identity under which User sells goods and services; (d) User and all transactions initiated by User will comply with all federal, state, and local laws, rules, and regulations applicable to User and/or User’s business, including HIPAA; (e) User will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) User’s use of the Services will be in compliance with this Agreement.
SECTION 11: No Warranties
THE USE OF “BOOMERANG” IN SECTIONS 9 (LIMITATION OF LIABILITY & RELEASE) AND 11 (NO WARRANTIES) MEANS BOOMERANG, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, ATTORNEYS, DIRECTORS, AND EMPLOYEES). THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BOOMERANG SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BOOMERANG DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE, OR CORRECT; THAT THE SERVICES WILL MEET USER’S REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT, OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SECTION 12: CHOICE OF LAW; FORUM
This Agreement will be governed by, and construed in accordance with, the laws of the State of Michigan applicable to contracts executed in and to be performed in Michigan. All actions and proceedings arising out of or relating to this Agreement will be heard and determined in a Michigan state court sitting in Oakland County, Michigan or a Michigan federal court located in Detroit, Michigan, and the parties hereby irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding. Any action or proceeding by User relating to any claim, controversy, or dispute between User and Boomerang, its processors, suppliers, or licensors (or their respective affiliates, agents, directors, or employees), including any claims relating in any way to this Agreement or the Services, or any other aspect of the relationship between User and Boomerang must commence within 1 year after the cause of action accrues.
SECTION 13: MISCELLANEOUS
If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable after all appeals have either been exhausted or the time for any appeals to be taken has expired, the remainder of the terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated. This Agreement may not be assigned by User without Boomerang’s prior written consent, but Boomerang is free to assign its rights and responsibilities in its sole discretion.
SECTION 14: WAIVER OF JURY TRIAL
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT.