BOOMERANG TERMS OF USE

(Last Updated: March 13, 2017)

The following terms and conditions (the "Agreement") govern all use of the "Boomerang" application ("Application") and the websites located at www.baydin.com, www.boomerangapp.com, www.boomeranggmail.com, www.boomerangoutlook.com, and other Baydin-owned websites (collectively, the "Service"). The Service is provided to you by Baydin, Inc. ("Baydin", "Us", "We, or "Our").  The Service is subject to your ("You" or "Your") acceptance without modification of all of the terms and conditions contained herein.  BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.

Baydin reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time.  You will be notified of such changes by email, account notification, or a notice posted on the Service.  Your continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes; provided that, if You are a for-fee subscriber, such changes will go into effect beginning at the start of Your next subscription term.  

If You are an individual (not an organication), You hereby certifiy to Baydin that You are at least 16 years of age.  In jurisdictions where 16 is not the age of consent to contract, You represent and warrant that You have all necessary authorizations and permissions from an appropriate legal guardian.  You also certify that You are legally permitted to use the Service.

In the event You are using the Service as the employee or agent of an organization that has a separate commercial agreement with Baydin for use of the Service and such agreement conflicts with this Agreement – such separate agreement shall control.  

SCOPE.

Boomerang provides a powerful suite of essential email productivity tools that integrate deeply with Gmail, GSuite, Outlook, and Office365. These productivity tools exist in the form of extensions, standalone applications for computers, and standalone mobile applications.

RESTRICTIONS.

You shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for any direct commercial purpose; (iv) remove or obscure any proprietary notices on the Service; (v) use the Service for any unlawful purpose; (vi) access any Baydin product or service not explicitly permitted by these terms; (vii) send any content via the  Service that violates any laws or regulations of third party rights; or (viii) interfere or disrupt the Service in any way. As between the parties, Baydin shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof.  

GENERAL CONTENT.

You agree that the Service contains information and other content specifically provided by Baydin or its partners and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.  Except as expressly authorized by Baydin in writing, You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content.  However, Baydin hereby grants You a limited, revocable, non-sublicensable license to reproduce and display such content (excluding any software code); provided, that You retain all copyright and other proprietary notices contained therein.  Reproducing, copying or distributing any such content, including any materials or design elements on the Service, for any other purpose is strictly prohibited without the express prior written permission of Baydin.  

FEES.

Some parts of the Service may be provided for free, but Baydin charges for other part of the service ("Fees").  Fees are generally changed on a subscription basis ("Subscription").  As set forth be below, subscriptions are for an initial period, followed by recurring consecutive periods of equal length to the initial period (together, the "Subscription Period").

You shall pay Baydin for Your Subscription in advance of the applicable Subscription Period. Except as otherwise set forth in this Agreement, all payments are non-refundable and Your Subscription is non-cancellable during the applicable Subscription Period; provided that, if Baydin terminates a Subscription without cause, Baydin will refund You a pro-rata portion of the services fees paid in advance for the unused (remainder) of the Subscription Period. You accept responsibility for all recurring charges that occur prior to cancellation of a Subscription.

Baydin uses a third-party payment processor (the "Payment Processor") to bill You through a payment account linked to  Your Subscription ("Billing Account"). You shall pay all amounts due under this Agreement, through the Payment Processor. You hereby authorize Baydin, through the Payment Processor, to charge Your chosen payment provider ("Payment Method"). Baydin reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. The terms of Your payment will be based on its Payment Method and may be determined by agreements between You and the payment provider of the chosen Payment Method.

Unless You opt out of auto-renewal, which must be done through Your Service account settings at least one (1) day before the then-current Subscription Period ends, all Subscriptions will be automatically extended for successive periods. If You terminate Your Subscription, You may use the Subscription until the end of the then-current Subscription Period. Your continued use of a Subscription constitutes confirmation that Baydin is authorized to charge Your Payment Method for Your Subscription. All Fees are payable in advance.

BAYDIN MAY SUBMIT RECURRING CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY BAYDIN) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BY BAYDIN PRIOR TO THE DATE THAT IS FIVE (5) DAYS AFTER THE DATE ON WHICH BAYDIN RECEIVED SUCH NOTICE. TO TERMINATE YOUR SUBSCRIPTION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR ACCOUNT SETTINGS PAGE.

You shall provide current, complete and accurate information for its Billing Account. You must promptly update all information to keep Your Billing Account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and You must promptly notify Baydin and its Payment Processor if the Payment Method is canceled or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your user name or password. Changes to Your Billing Account can be made at Subscriber's account settings. If You fail to provide any of the foregoing information, You agree that Baydin may continue charging for any use of Your Subscription under the Billing Account.

Baydin has the right to verify Your Payment Method prior to the end of a Subscription Period. If Your Payment Method is no longer valid or rejected, Baydin shall notify You and You shall immediately update your Billing Account and Payment Method at least five (5) days before the end of a Subscription Period; Your failure to comply with the foregoing shall result in the immediate termination of the applicable Subscription.

Any free trial or other promotion that provides access to a Subscription must be used within the specified time of the trial.

As between the parties, You are responsible for withholding, filing, paying and reporting all taxes, duties, and other governmental assessments associated with its activity in connection with the Service.

Unpaid Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all costs and expenses of collection.  

Please check www.boomeranggmail.com/subscriptions.html regularly for updates/changes to any Fees or payment methods.   

WARRANTY DISCLAIMER.

THE SERVICE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  BAYDIN AND ITS LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS. BAYDIN MAKES NO WARRANTIES THAT ANY EMAILS OR OTHER CONTENT YOU SEND OR OTHERWISE POST VIA THE SERVICE WILL BE DELIVERED TO THE INTENDED RECIPIENT, RETURNED TO YOUR INBOX, OR TRACKED VIA A READ RECEIPT IN AN ERROR FREE MANNER. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL BAYDIN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO YOUR MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE OR ANY OF BAYDIN' SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS, (IV) DAMAGES TO ANY EMAILS FOR OTHER CONTENT YOU SEND OR POST VIA THE SERVICE, (V) ANY DAMAGES CAUSED BY THIRD PARTIES, (VI) ANY DAMAGES CAUSED BY MATTERS BEYOND BAYDIN' REASONABLE CONTROL (SUCH AS ACTS OF GOD OR TELECOMMUNICATION FAILURES), OR (VII) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $50.00 (U.S.) (PROVIDED THAT, IF YOU ARE A FOR-FEE SUBSCRIBER, SUCH AMOUNT SHALL BE THE TOTAL AMOUNT YOU HAVE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

INDEMNITY.

You shall indemnify and hold harmless Baydin, its affiliates, its partners, and each of its, and its affiliates, and its partners, employees, contractors, directors, suppliers and representatives from all liabilities, losses, damages, claims, and expenses, including reasonable attorneys' fees, that arise from or in connection with (i) Your breach of this Agreement, or (ii) your negligence or willful misconduct.  Baydin reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully assist and cooperate with Baydin in asserting any available defenses.

TERMINATION.

If You want to terminate this Agreement – You must cancel Your Service account. You can cancel Your account by 1) revoking access to Boomerang via all third-party integrations, 2) uninstalling Boomerang's applications via the methods provided on the platform Boomerang integrates with, 3) emailing support@baydin.com requesting to terminate this agreement. Baydin may terminate or suspend Your access to the Service at any time, with or without cause.  Upon termination, You will no longer access (or attempt to access) the Service.  If You are a for-fee subscriber, You shall not be entitled to any refund of fees paid for the remainder then-current subscription term (unless terminated by Baydin without cause). All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, all warranty disclaimers, limitations of liability and disputes resolutions provisions.

PRIVACY.

Baydin takes the privacy of its users very seriously. We strongly urge You to review our Privacy Policy. If You have any questions or concerns about how We use Your emails or other personal information – the answers should be in the policy. If not, the policy contains Our contact information – so You can reach out to Us with inquiries.

DISPUTE RESOLUTION.

Let's Try To Work It Out.  Ideally, if You have any concerns or complaint against Baydin, We would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against Baydin, You agree to try to resolve the dispute informally by contacting support@baydin.com. Baydin will attempt to resolve the dispute informally (and will contact You via email). If a dispute is not resolved within 15 days of submission, You may bring a formal proceeding.

Arbitration. Any disputes that are not settled informally shall be settled by binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. ("JAMS").  The arbitrator shall be selected by joint agreement between You and Baydin.  In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute.  The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court.   The arbitration proceeding shall take place in Santa Clara County, California, using the English language.  Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the "General" section below) at any time.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by notify Baydin in writing within 30 days of the date that You first become bound by this Agreement. Your opt-out request must be sent to:

Baydin, Inc. (ATTN: Arbitration Opt-out)

147 Castro Street

Suite 3

Mountain View, CA 94041

You must include Your name and residence address, the email address You use for Your Service account, and a clear statement that You want to opt-out of this arbitration agreement.

No Class Actions. You may only resolve disputes with Baydin on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed. This paragraph will not apply to the extent prohibited by applicable law.

Going to Court. Subject to the arbitration provision above, You agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in Santa Clara County, California.  You hereby submit to such jurisdiction and venue.

GENERAL.

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Baydin shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Baydin's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with Baydin' prior written consent.  Baydin may transfer, assign or delegate this Agreement and its rights and obligations without consent.  This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement.