Terms of Service
Last updated on March 2, 2023
Sava Tech, Inc. and its subsidiaries with authorized links to this Agreement (collectively and variously referred to herein as, “Boomering”, “Boomering”, “us”, “our” or “we”) provide: (a) the website located at www.boomeringapp.com, and/or all other websites of Sava Tech, Inc with authorized links to this Agreement (the “Sites”); and (b) the products or services with authorized links to this Agreement, including the Boomering Messenger application (defined below) and any other application that we provide (the “Products”). These Terms of Service (this “Agreement”) set forth the legally binding terms for your use of the Sites and Products.By using any Site or Product, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, please do not use any Site or Product. You must be at least 13 years old to use any Site or Product, and if you are 13-18 years old, you may only use a Site or Product if your parent or guardian consents to this Agreement on your behalf.
This Agreement is the final, complete and exclusive agreement of you and Boomering with respect to the subject matter hereof (including the Sites and Products) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter.
THESE TERMS REQUIRE THE USE OF ARBITRATION IN NEW YORK STATE ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS IN COURT, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU FOR ANY DISPUTES. PLEASE READ SECTION 9.4 CAREFULLY.
1.1 Boomering Messenger. Our messenger application (“Boomering Messenger”) enables users to send and receive messages on their mobile devices.
1.2 Accounts. You may browse http://www.boomeringapp.com without registering for an account with Boomering. In order to use the Products, you may be required to register for an account with Boomering (“Boomering Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Sites and the Products will not violate any applicable laws. You may terminate your Boomering Account at any time, for any reason, by following the instructions on the Sites. Boomering may suspend or terminate your Boomering Account in accordance with Section 4. You are solely responsible for selecting an appropriate username and for any and all disclosures you make of your username to others, including any selection or disclosure that makes you personally identifiable. You are responsible for maintaining the confidentiality of your Boomering Account login username and password (the “Login Information”) and are fully responsible for all activities that occur under your Boomering Account. You agree to notify immediately Boomering of any unauthorized use, or suspected unauthorized use, of your Boomering Account, Login Information or any other breach of security. Boomering will have the right, but not the obligation, to deactivate any Boomering Account identified in such a notification. Boomering cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Invitations. Boomering Messenger allows users to invite other users to join Boomering Messenger (“Invitations”). You may only send an Invitation to another user if you have a professional, personal or family relationship with such user.
2. End User License Agreement
2.1 License to Use Sites and Products. Subject to the terms of this Agreement, Boomering grants you a non-transferable, non-exclusive, revocable license to: (a) use the Sites and Products for your personal non-commercial use or internal business use; and (b) download, install and use one copy of each Product on a mobile device that you own or control for your personal non-commercial use or internal business use (the “License”).
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Sites or the Products; (b) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Sites or the Products, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you will not access the Sites or the Products in order to build a similar or competitive product or service; (d) except as expressly stated herein, no part of the Sites or the Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you will not remove or destroy any copyright notices or other proprietary markings contained on or in the Sites or the Products. Any future release, update, or other addition to functionality of the Sites or the Products will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site content must be retained on any copies.
2.3 Local Laws. Boomering makes no representation that the Sites or the Products are appropriate for use in locations other than the United States. You are solely responsible for compliance with all applicable laws, including export and import regulations. Any use of the Sites or the Products contrary to any applicable law is prohibited.
2.4 Modification. Boomering reserves the right, at any time, to modify, suspend, or discontinue the Sites or the Products or any part thereof with or without notice. You agree that Boomering will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Sites or the Products or any part thereof.
2.5 Ownership. The Products provided to you are licensed to you and not sold. Boomering (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Sites and the Products, excluding your User Content (defined below). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Products. The Boomering name, logo, and the product names associated with the Products belong to Boomering (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Boomering (and its licensors, where applicable) reserve all rights not granted in this Agreement.
3. User Content
3.1 User Content. “User Content” of a user means any and all content that such user uploads, distributes, transmits or otherwise uses with the Sites or the Products, and includes: (a) the messages that you send to one or more other Boomering Messenger users with Boomering Messenger (“Private Messages”) or otherwise transmit through Boomering Messenger, and (b) your user profile. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Boomering. Boomering reserves the right (but will have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all User Content from the Sites or Products, and we are not obligated to backup any User Content. You are solely responsible for creating backup copies of your User Content if you desire.
3.1.1 Uploading Data: boomering uploads users’ data to our servers. We store this data securely and do not sell it. By signing up for boomering you consent to allowing boomering to upload your data to boomering’s servers. We will always be clear about what data we upload. Boomering uploads users images and their voice messages to our server. We do not upload your contacts.
3.2 License. By uploading, distributing, transmitting or otherwise using your User Content in connection with the Sites or the Products, you automatically grant, and you represent and warrant that you have the right to grant, to Boomering an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses (without your further consent), to reproduce, distribute, publicly display, publicly perform, telecommunicate to the public, prepare adaptations and derivative works of, incorporate into other works, and otherwise use: (a) your Private Messages to provide the Private Message to the intended recipient(s) (and as otherwise required by law); (b) your user profile, to display your user profile on the Sites and Boomering Messenger, to develop Products and Sites, and to share your user profile with third-party developers; and (c) your User Content to provide and improve the Sites and the Products. You agree to waive (and cause to be waived) irrevocably any claims and assertions of moral rights or attribution with respect to your User Content. You represent and warrant to Boomering that any use of the User Content as described above will not require any third-party licenses, permissions or consents.3.3 Feedback. If you provide Boomering with any feedback or suggestions, including support inquiries (“Feedback”), you hereby assign to Boomering all rights in the Feedback and agree that Boomering will have the right to use such Feedback and related information in any manner it deems appropriate. Boomering will treat any Feedback you provide to Boomering as non-confidential and non-proprietary. You agree that you will not submit to Boomering any information or ideas that you consider to be confidential or proprietary.
3.4 Acceptable Use Policy. The following sets forth Boomering’s “Acceptable Use Policy”:(a) You agree not to use the Sites or the Products to upload, distribute, or otherwise use any User Content: (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that will require that Boomering obtain any third-party licenses, permissions or consents in connection with the use of User Content in a manner contemplated by this agreement; (iii) that is tortious, trade libelous, defamatory, false, intentionally misleading, or that impersonates any other person or entity; (iv) that is harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable; (v) that is harmful to minors in any way; (vi) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vi) that violates of any law, regulation, or contractual obligations.(b) You agree not to use the Sites or the Products to: (i) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) collect information or data regarding other users, including email addresses or usernames, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); (iii) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Sites (e.g., a denial of service attack); (iv) attempt to gain unauthorized access to the Sites or the Products or servers or networks connected to the Sites (e.g., through password mining); or (v) interfere with another user’s use and enjoyment of the Sites or the Products.
3.5 Copyright Policy. In connection with our Sites and Products, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Boomering Accounts of users of our Sites and Products who are infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Sites or Products, unlawfully infringing copyright rights in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification must be provided to our designated Copyright Agent: (1) your physical or electronic signature; (2) identification of the copyrighted work(s) that you claim to have been infringed; (3) identification of the material on our services that you claim is infringing and that you request us to remove; (4) sufficient information to permit us to locate such material; (5) your address, telephone number, and email address; (6) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (7) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyrighted material that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.The designated Copyright Agent for Boomering is:
Sava Tech, Inc.
3924 N. Abingdon St
Arlington, VA 22207
3.6 Enforcement. We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify your User Content at any time for any reason in our sole discretion with or without notice to you. We may suspend or terminate your Boomering Account in accordance with Section 4.
4. Term and Termination
4.1 This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the Sites or the Products, unless earlier terminated in accordance with this Agreement.
4.2 Notwithstanding the foregoing, if you used the Sites or the Products prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commenced on the date of your first use of the Sites or the Products (whichever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use the Sites or the Products, unless earlier terminated in accordance with this Agreement.
4.3 We may: (a) suspend your rights to use the Sites, the Products, and/or your Boomering Account, or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, Boomering reserves the right to terminate this Agreement with respect to any user who has infringed intellectual property (including copyright) rights upon receipt of a valid notice of infringement of intellectual property (including copyright).
4.4 Upon termination of this Agreement, your Boomering Account and right to use the Sites and the Products will automatically terminate immediately. You understand that any termination of your Boomering Account may involve deletion of your User Content associated therewith from our live databases. Boomering will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Boomering Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2 (excluding 2.1), 3, 4.4, and 5 through 10.
You agree to defend, indemnify and hold harmless Boomering (and its suppliers) from and against any losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of any claim, suit or demand brought or asserted by third parties resulting from or relating to: (i) your use of the Sites or the Products; (ii) your User Content; or (iii) your actual or alleged violation of this Agreement. Boomering reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Boomering and you agree to cooperate with our defense of these claims. You agree not to settle any matter with respect to which you are required to defend, indemnify and hold harmless Boomering hereunder without the prior written consent of Boomering. Boomering will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. Third Parties
6.1 Application Providers. You acknowledge and agree that the availability of Boomering Messenger is dependent on the third-party marketplace from which you received Boomering Messenger or any other our Products, e.g., Apple App Store, the Google Play Store, Microsoft or the Amazon Appstore for Android (“Application Provider”). You acknowledge that this Agreement is between you and Boomering and not with the Application Provider. Boomering, not the Application Provider, is solely responsible for Boomering Messenger and any other of our Products, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the Application Provider in connection with Boomering Messenger (if any) and any other of our Products. You agree to comply with, and your license to use Boomering Messenger is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the Application Provider’s terms and policies) when using Boomering Messenger. You acknowledge that the Application Provider (and its subsidiaries) are third-party beneficiaries of this Agreement and that each of them will have the right to enforce this Agreement for their own benefit. You acknowledge that, if your mobile device is set to automatically update applications, you consent for us to update the Boomering Messenger application from time to time.
6.2 Other Users. The Sites and Products may contain certain User Content provided by other users of the Sites and Products (e.g., messages, other content). Boomering is not responsible for and does not control User Content. Boomering has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk. If you use the Sites or Products we make available to share messages or other content with other users, Boomering is not responsible for any users’ subsequent use or disclosure of your messages or any other User Content. Your interactions with other users are solely between you and the other user and we are under no obligation to become involved. You agree that Boomering will not be responsible for any liability incurred as the result of any such interactions.
6.3 Release. You hereby irrevocably and unconditionally release and forever discharge Boomering (and its suppliers) from any and all claims, demands, and rights of action, whether now known or unknown, which relate to any interactions with, or act or omission of, any Site or Product or other users of the Sites or Products. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
7.1 THE SITES AND PRODUCTS ARE PROVIDED “AS-IS” AND AS AVAILABLE AND BOOMERING (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. BOOMERING (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SITES OR PRODUCTS: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
7.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation of Liability
8.1 IN NO EVENT SHALL BOOMERING (OR ITS SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SITES, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS, EVEN IF BOOMERING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BOOMERING’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SITES AND PRODUCTS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF: (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID BOOMERING IN THE PRIOR 12 MONTHS (IF ANY).8.3 IN NO EVENT WILL BOOMERING’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.8.4 SOME JURISDICTIONS DO NOT ALLOW SOME OF THE LIMITATIONS OR EXCLUSIONS OF LIABILITY FOR DAMAGES DESCRIBED ABOVE, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9.1 Changes to this Agreement. This Agreement is subject to occasional revision, and if we make any material changes, we will notify you by sending you an email to the last email address you provided to us and/or by prominently posting notice of the changes on our Sites. Any changes to this Agreement will be effective upon the earlier of 30 calendar days following our dispatch of an email notice to you or 30 calendar days following our posting of notice of the changes on our Sites. These changes will be effective immediately for new users of the Sites or Products. Any material changes to Section 9.4 (Dispute Resolution) below, including changes to, or deletion of, that Section, will not apply to any claim(s) that you notified Boomering of in writing before the effective date of the change. Please note that at all times you are responsible for updating your personal information to provide us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Sites or our Products following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated at the top of this document. We recommend that you print a copy of this Agreement for your reference and revisit this policy from time to time to ensure you are aware of any changes.
9.2 Notice. Any notice provided to Boomering pursuant to this Agreement should be sent to:
Sava Tech, Inc.
3924 N. Abingdon St
Arlington, VA, 22207
United StatesEmail: firstname.lastname@example.org
9.3 Governing Law. This Agreement will be governed by the laws of New York State without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.4 Resolution of Disputes.(a) Mandatory Arbitration. Any dispute or claim between you and Boomering relating to or arising out of the Sites, Products or this Agreement (including disputes about the interpretation of this clause and the arbitrability of the dispute) will be referred to and determined exclusively through binding arbitration conducted in New York, New York, on an individual basis, before a single arbitrator and in accordance with the applicable New York) arbitration statute . However, you and Boomering may take claims to small claims court in New York, New York if the dispute qualifies for hearing by such a court. BY ENTERING INTO THIS AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT ANY CLAIMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. You and Boomering also agree that: (i) you and Boomering will each pay such portion of the costs of the arbitration (which consists of each party’s legal expenses, the fees and expenses of the arbitrator, and any other expenses related to the arbitration) as determined by the arbitrator; (ii) the arbitrator may, in making an award regarding the costs of the arbitration, consider whether the costs of the arbitration are cost prohibitive as compared to the cost of litigating in a court, and based on such a finding, require Boomering to pay a greater portion of the fees and expenses of the arbitrator, or the travel expenses of you or any witness, than might otherwise be the case, in which case Boomering will pay as much of your arbitration costs as the arbitrator deems necessary to prevent such cost-prohibitiveness; (iii) Boomering also reserves the right, in our sole and exclusive discretion, to assume responsibility for all of the costs of the arbitration; (iv) the arbitrator will honor claims of privilege and privacy recognized at law; (v) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (vi) the arbitrator’s award will be final and non-appealable, but may be enforced in any court of competent jurisdiction.(b) Class Action Waiver. THE ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.(c) Right to Opt Out. You have the right to opt out of this agreement to arbitrate by sending written notice of your decision to opt out, postmarked within 30 days of the date of this Agreement, to the address listed in Section 9.2 (above). Your written notice must include your Boomering user name and email address. If you send written notice, then the mandatory arbitration provisions in this Agreement will not apply to you or Boomering. IF YOU DO NOT SEND THIS WRITTEN NOTICE, THEN YOU AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISIONS IN THIS AGREEMENT.(d) Mandatory Forum Selection . If for any reason a claim proceeds in court rather than in arbitration, you and Boomering agree that the claim will be brought exclusively in courts located in New York, New York. You and Boomering expressly consent to the exclusive jurisdiction of, and waive any and all objections to venue or jurisdiction in, the courts in New York, New York for such purpose. However, you or Boomering may seek injunctive or other equitable relief to protect intellectual property rights and any claims regarding infringement or misappropriation of intellectual property rights in any court of competent jurisdiction
9.5 Miscellaneous. If, in any jurisdiction, any provision of this Agreement or its application to any party or circumstances is, for any reason, held to be restricted, prohibited, invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be, as to such jurisdiction, ineffective only to the extent of such restriction, prohibition, invalidity or unenforceability and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to other parties or circumstances. This Agreement is the final, complete and exclusive agreement between you and Boomering with respect to the subject matter hereof (including the Sites and Products) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matters. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. This Agreement, and your rights and obligations herein, may not be assigned by you without Boomering’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Boomering may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. The terms of this Agreement will be binding upon assignees. The communications between you and Boomering use electronic means, whether you visit the Sites, use the Products or send Boomering emails, or whether Boomering posts notices on a Site or communicates with you via email. For contractual purposes, you: (1) consent to receiving communications from Boomering in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Boomering provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
10. Apple Application Provider Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using a copy of Boomering Messenger that was downloaded from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 10, the more restrictive or conflicting terms and conditions in this Section 10 apply, but solely with respect to copies of Boomering Messenger downloaded from Apple iTunes.
10.1 Acknowledgement: Boomering and you acknowledge that this Agreement is concluded between Boomering and you only, and not with Apple, and Boomering, not Apple, is solely responsible for Boomering Messenger and the content thereof. To the extent this Agreement provides for usage rules for Boomering Messenger that are less restrictive than the Usage Rules set forth for Boomering Messenger in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies. Capitalized terms used in this Section 10 that are not defined in this Agreement will have the meaning set out in Apple’s App Store Terms of Service.
10.2 Scope of License: The license granted to you for Boomering Messenger is limited to a non-transferable license to use Boomering Messenger on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
10.3 Maintenance and Support: Boomering is solely responsible for providing any maintenance and support services with respect to Boomering Messenger, as specified in this Agreement (if any), or as required under applicable law. Boomering and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Boomering Messenger.
10.4 Warranty: Boomering is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Boomering Messenger to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for Boomering Messenger to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Boomering Messenger, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Boomering’s sole responsibility.
10.5 Product Claims: Boomering and you acknowledge that Boomering, not Apple, is responsible for addressing any claims of you or any third party relating to Boomering Messenger or your possession and/or use of Boomering Messenger, including, but not limited to: (i) product liability claims; (ii) any claim that Boomering Messenger fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Boomering’s liability to you beyond what is permitted by applicable law.
10.6 Intellectual Property Rights: Boomering and you acknowledge that, in the event of any third-party claim that Boomering Messenger or your possession and use of Boomering Messenger infringes that third party’s intellectual property rights, Boomering, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
10.7 Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.10.8 Developer Name and Address: Boomering’s contact information for any end-user questions, complaints or claims with respect to Boomering Messenger is set forth in Section 9.10.9 Third-Party Beneficiary: Boomering and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.