Last Updated On: December 18, 2023

These Terms of Use (these “Terms”) are a legally binding contract between Boomerang Direct Marketing, LLC, a Colorado limited liability company (“Boomerang” or “we,” “us,” or “our”), and you (the “User” or “you” or “your”) concerning your access to and use of this Sites, any other Sites, technology platforms, mobile apps, software, systems and/or other service offerings provided by Boomerang (collectively, the “Sites”), including your use of the Sites to access and use services provided by Boomerang (“Services”). Boomerang provides certain Services under a separate Services Agreement (the “Services Agreement”), which is in addition to (and not in lieu of) these Terms of Use.

1. Acceptance and Modification. By clicking “accept” or by using the Sites, you agree to be bound by these Terms. Do not use the Sites if you do not agree with these Terms. We may change, add, or remove all or portions of these Terms at any time by notifying you of the change in writing or by updating the date above after Last Updated On. Such changes shall become effective immediately upon posting. It is your responsibility to review these Terms prior to each use of the Sites. If you are agreeing to these Terms on behalf of an entity, you represent and warrant that you have the legal authority to bind such entity to these Terms and the terms “you” and “your” refer to the entity.
2. Rules of Conduct.
   • 2.01  Without Boomerang’s prior written consent, you shall not: (a)access any portion of the Sites or use the Services if Boomerang has revoked or terminated your access or use; (b) use the Sites or the Services except in compliance with all applicable agreements between you and Boomerang, including these Terms and the Service Agreement, and in accordance with all applicable law; (c) use any robot, spider, service, software, or any manual or automatic device, tool, or process designed to data mine or scrape content, data, or information from the Sites; (d) cache or archive the Sites or any Boomerang Content (defined below), except for a public search engine’s use of spiders for creating search indices; (e) use any services, software, or any manual or automatic device, tool, or process to circumvent or attempt to circumvent any restriction, condition, or technological measure that controls access to the Sites or Services; or (f) do anything that could disable, damage, or change the functioning or appearance of the Sites or the Services.
   • 2.02  In your access or use of the Sites or the Services, you shall not: (a)knowingly mislead any person; (b) engage in or attempt to engage in any unfair or deceptive trade practices; (c) impersonate anyone else or otherwise misrepresent your identify, affiliation, or status; (d) create, upload, transmit, distribute, or store any Visitor Content (defined below) that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable; (e) impersonate any person or entity, falsely claim an affiliation with any person or entity, access the Sites or accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Sites, or perform any other similar fraudulent activity; (f) send junk mail or spam to users of the Sites, including without limitation unsolicited advertising, promotional materials, or other solicitation material that is beyond what Boomerang would ordinarily allow or facilitate on the Sites, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests), and other similar activities; (g) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Sites or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence; (h) interfere with or damage the operation of the Sites or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, files or programs that disrupt the Sites; (i) attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Sites that you are not authorized to access; or (j) use the Sites in any way that infringes any third party’s rights, including intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
3. Online Account.
   • 3.01  To access some portions of the Sites or to use the Services, you may be required to create an account. If you create an account, you agree to provide us with complete and accurate information and to keep this information up to date. This may include, but is not limited to, your name, email address, telephone number, company name, company website, directory listings, social media profiles, password, and credit card or ACH transfer information (provided, however, that nothing in this section shall indicate that such collection takes place, and the information practices described in Boomerang's Privacy Notice shall control). We reserve the right to suspend your account and any Services if we believe that your account information, including payment information, is not up to date. We reserve the right to refuse any username or password that we believe is inappropriate. You are responsible for ensuring the confidentiality of your username and password. You are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. You agree to immediately notify us of any unauthorized use of your account or any breach of your account security.
   • 3.02  Unless expressly permitted in writing by Boomerang, you may not sell, rent, lease, share, or provide access to your account to anyone else, including without limitation, charging anyone for access to administrative rights on your account. Boomerang reserves all available rights and remedies to prevent unauthorized use of the Sites, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use. If you provide any information or take actions that do not satisfy these provisions, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your user account and refuse current or future use of the Sites.
   • 3.03  Boomerang may permit you to register for and log on to the Sites via certain third-party services. The third party’s collection, use, and disclosure of your information will be subject to that third-party service’s privacy notice. Further information about how Boomerang collects, uses, and discloses your personal information when you link your Boomerang account with your account on any third-party service can be found in Boomerang's Privacy Notice.
4. Availability of Sites. We will use reasonable efforts to provide the Sites on a 24 hours a day, seven days a week basis. From time to time the Sites may be inaccessible or inoperable for any reason, including equipment malfunctions, maintenance, or causes beyond our reasonable control or that are not reasonably foreseeable.
5. Boomerang Content. The information, material, and other content available on the Sites and through the Services (“Boomerang Content”) are protected by copyright and owned or controlled by Boomerang or Boomerang’s business partners or service providers. You shall abide by all copyright notices, information, or restriction applicable to any Boomerang Content. You may not modify or display any Boomerang Content without Boomerang’s prior written consent.
6. Visitor Content and Community Guidelines.
   • 6.01  If you post or upload any information, materials, or other content to the Sites, or otherwise provide information, materials, or other content to Boomerang (“Visitor Content”), you represent and warrant to Boomerang that you have all the necessary legal rights to post, upload, or provide the same and it will not violate any law or the rights of any person.
   • 6.02  You are solely responsible for your Visitor Content and the consequences of posting or publishing it. You represent and warrant that: (1) you are the creator or own or control all right in and to the Visitor Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your Visitor Content does not and will not: (a) infringe, violate, or misappropriate 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, or (b) defame any other person; (3) your Visitor Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Visitor Content specifically does not contain any pre-release or non-public beta software or content or any confidential information of Boomerang or third parties. To the extent any third party requires you to have a license or other rights to use their services or offerings as Visitor Content, you are solely responsible for securing all such rights and permissions, and Boomerang shall have no liability in the event such rights or permissions are inadequate or nonexistent. In the event a third party claim asserts or involves an allegation that Visitor Content violates, infringes, or misappropriates any third party rights to copyrights, trademarks, trademark applications (including intent-to-use applications, trade names, moral rights, trade secrets, patents, patent applications, inventions, invention disclosures, know-how, designs, or other items commonly recognized as intellectual property under the laws of the United States or any other authority, you shall (1) provide the indemnification required herein; and (2) (i) procure for Boomerang the right to continue using the Visitor Content; (ii) replace or modify the Visitor Content so that it becomes non-infringing; or (iii) take any other actions reasonably requested by Boomerang, at Boomerang’s sole discretion. Boomerang reserves all rights and remedies against any users who breach these representations and warranties. You grant Boomerang the right and license to use any Visitor Content for the purposes for which it was provided.
   • 6.03  Boomerang may use reasonable security measures to attempt to protect Visitor Content against unauthorized copying and distribution. However, Boomerang does not guarantee that any unauthorized copying, use, or distribution of Visitor Content by third parties will not take place. To the furthest extent permitted by applicable law, you hereby agree that Boomerang shall not be liable for any unauthorized copying, use, or distribution of Visitor Content by third parties and release and forever waive any claims you may have against Boomerang for any such unauthorized copying or usage of the Visitor Content, under any theory. THE SECURITY MEASURES TO PROTECT VISITOR CONTENT USED BY BOOMERANG ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES, GUARANTEES, CONDITIONS, ASSURANCES, OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO BREACH, DISABLEMENTS, OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
   • 6.04  You agree that your Visitor Content will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s Disclosures Guide, the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (“FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Sites, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the Sites, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not Boomerang, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Sites.
   • 6.05  To the fullest extent permitted by applicable law, Boomerang reserves the right, without obligation, to remove, screen, or edit any Visitor Content posted or stored on the Sites at any time and without notice, including where such Visitor Content violates these Terms or applicable law, and you are solely responsible for creating backup copies of and replacing any Visitor Content you post or store on the Sites at your sole cost and expense. Any use of the Sites in violation of the foregoing or the remainder of this section violates the Terms and may result in, among other things, termination or suspension of your rights to use the Sites.
7. Links to Third-Party Sites. The Sites and Services may contain links to third-party websites that are not owned or controlled by Boomerang. Boomerang assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. We are not responsible for the accuracy, relevancy, copyright or other IP compliance, legality, security, or decency of, nor do we endorse, material contained in sites to which you link from the Sites. We have not reviewed, and cannot review, all of the material, including computer software made available through the websites and webpages to which we link, and that link to the Sites. By using the Sites or any Services, you release and discharge Boomerang from any and all liability arising from your use of any third-party websites. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. We disclaim any responsibility for any harm resulting from your use of websites and web pages linked through our Sites.
8. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
   • 8.01  YOUR USE OF THE SITES IS AT YOUR OWN RISK AND THE SITES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” BOOMERANG DISCLAIMS, AND YOU DO NOT RECEIVE, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
   • 8.02  YOU REPRESENT AND WARRANT THAT YOU HAVE NOT RELIED ON ANY ORAL OR WRITTEN STATEMENTS MADE BY BOOMERANG OR ANY THIRD-PARTY ABOUT THE SITES OR THESE TERMS, EXCEPT AS EXPRESSLY SET FORTH HEREIN. YOU AGREE THAT ANY ORAL OR WRITTEN STATEMENTS MADE BY BOOMERANG WHICH ARE NOT EXPRESSLY SET FORTH HEREIN DO NOT CREATE A REPRESENTATION OR WARRANTY WITH RESPECT TO THE SITES OR THESE TERMS.
9. LIMITATIONS OF LIABILITY AND OTHER CLAIM LIMITATIONS.
   • 9.01  BOOMERANG SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, OR FOR DAMAGES FOR TO LOST PROFITS, LOST REVENUE, OR LOST BUSINESS, ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SITES. BOOMERANG’S LIABILITY TO YOU ARISING UNDER OR RELATED TO THESE TERMS IS LIMITED TO OF $50.00.
   • 9.02  IN NO EVENT WILL BOOMERANG BE LIABLE FOR YOUR ATTORNEYS’ FEES OR OTHER COSTS ASSOCIATED WITH ANY DISPUTE BETWEEN YOU AND BOOMERANG, AND YOU AGREE NOT TO CLAIM, SEEK, OR COLLECT THE SAME FROM BOOMERANG. BOOMERANG SHALL NOT BE LIABLE TO YOU FOR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING ACTIONS OF THE GOVERNMENT, MAIL PROVIDERS, TELECOMMUNICATIONS PROVIDERS, OR OTHER THIRD PARTIES, SABOTAGE, FIRE, FLOOD, PANDEMIC, OR WEATHER.
   • 9.03  YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
   • 9.04  THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 9 AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
10. Indemnification. You shall indemnify, defend, and hold harmless Boomerang and its members, managers, officers, contractors, employees, agents, and consultant (the “Indemnified Group”) from and against any and all actions, suits, proceedings, claims, liabilities, damages, losses, judgments, and expenses, including reasonable attorneys’ fees and costs, made or claimed by a third party arising out of or related to your the breach of these Terms and your violation of any contract or tort rights of any third party or the Indemnified Group that arises out of or relates to these Terms.
11. Intellectual Property.
    • 11.01  Intellectual Property Generally.
      • (a)  BOOMERANG DM, MARKET IQ, the Boomerang logos, and any other product or service name, logo, or slogan used by Boomerang, the look and feel of the Sites, including all page headers, custom graphics, button icons, and scripts, intellectual property rights in the Sites, including database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered), and any other similar rights wherever existing together with the right to apply for protection of the same (“Protected IP”), are trademarks, trade dress, or protected intellectual property of Boomerang, and may not be used in whole or in part in connection with any product or service that are not Boomerang’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Boomerang, without our prior written permission. Any use of Protected IP must be in accordance with this section.
      • (b)  All other trademarks referenced in the Sites are the property of their respective owners. Reference on the Sites to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation. To the extent Boomerang ever grants express permissive use for any Boomerang’s intellectual property, Boomerang reserves the right to cancel, modify or change any such permissive use at any time in its sole discretion.
      • (c)  You may not: (i) use the Protected IP in a way that suggests an affiliations, partnership, sponsorship or endorsement by Boomerang; (ii) combine Protected IP as part of a name of a product or service; (iii) include Protected IP in editorial content that suggest it’s been authored by, or represents the views or opinions of the Boomerang; (iv) present Protected IP in a manner that is misleading, defamatory, libelous, obscene, infringing, or in a manner that violates the Terms; (v) present Protected IP in a manner that infringes the trademark, copyright or any other rights of a third-party; (vi) infringe, derogate, dilute, or impair the rights of Boomerang in the Protected IP; (vii) modify the Protected IP in any way, such as changing the color of the design, icons, or otherwise; or (viii) use Protected IP on your own promotional material without our express written consent via separate agreement.
      • (d)  Any display of Protected IP, including on any item you post Visitor Content to, shall include the following: “THIS CONTENT, PAGE AND/OR ACCOUNT USES THE SITES BUT IS NOT ENDORSED, CREATED, CERTIFED, WARRANTIED OR GUARANTEED BY BOOMERANG.”
      • (e)  Boomerang reserves the right to change the appearance of the Protected IP at any time without notice. Any use of the Protected IP shall inure to the benefit of Boomerang. By using the Protected IP pursuant to Boomerang’s approval, you acknowledge Boomerang’s ownership of all Protected IP and warrant that you will not take any action which is inconsistent with Boomerang’s ownership. Strict compliance with these guidelines is required at all times, and any use of the Protected IP in violation of these guidelines will automatically terminate any license related to your use of the Protected IP.
      • (f)  Moreover, without permission the rights of other holders of intellectual property unless otherwise permitted by law, you may not share other’s copyrighted content or protected intellectual property, including but not limited to goods or services protected by trademark.
    • 11.02  Intellectual Property Complaints. Boomerang will respond to claims of alleged copyright infringement. If you believe your copyrighted work has been infringed, please notify Boomerang’s copyright agent. Please include the following information: (a)an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located, on the Sites or elsewhere; (d) your contact information, including your address, telephone number, and e-mail address; and (e) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright or trademark owner, its agent, or the law.
    • 
      

      Your notice must be submitted to:

      Boomerang Direct Marketing

      Attn: DMCA Agent

      9155 E Nichols Ave Ste 175

      Centennial, CO 80112

      (303) 997-7047

      support@boomerangdm.com

12. Third-Party Content and Offerings.
    • 12.01  Third Party Content Generally; Reference Sites.
      • (a)  In addition to the Visitor Content, Boomerang may provide other third-party content on the Sites (“Third-Party Content”). Boomerang does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Please be aware that we do not create Third-Party Content, update, or monitor it. Therefore, we are not responsible for any Third-Party Content on the Sites.
      • (b)  You are responsible for deciding if you want to access or use third-party websites or applications that link from the Sites, or otherwise contact individuals or entities appearing on the same (“Reference Sites”). Boomerang does not control or endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites, and makes no representations or warranties of any kind regarding the Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Sites are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
      • (c)  By submitting ideas, suggestions, documents, and/or proposals (“Submissions”) to Boomerang or its employees, you acknowledge and agree that Boomerang shall be entitled to use or disclose such Submissions for any purpose in any way without providing compensation or credit to you.
    • 12.02  Feedback.
      • (a)  We welcome your comments and feedback regarding the Sites. We do not, however, accept confidential or proprietary information. Accordingly, all comments, feedback, ideas, suggestions, materials, information and other submissions disclosed, submitted or offered to Boomerang (collectively, “Comments”) are not confidential and will become and remain Boomerang property. The disclosure, submission or offer of any Comments will constitute an assignment to Boomerang of all worldwide rights, titles and interests and goodwill in the Comments without payment of any compensation. Boomerang may use or exploit any feedback you provide about the Sites or the Services in any manner it so chooses.
      • (b)  SIMILARLY, AND FOR THE AVOIDANCE OF ANY DOUBT, BOOMERANG WILL TREAT ANY PUBLIC-FACING POSTINGS, FEEDBACK, EMAILS OR SUGGESTIONS YOU PROVIDE TO US AS NON-CONFIDENTIAL AND NON-PROPRIETARY. IF YOU CHOOSE TO USE YOUR REAL NAME, YOUR NAME WILL BE AVAILABLE TO AND VIEWABLE BY ANYONE USING THE WORLD WIDE WEB AND/OR USING A SEARCH ENGINE. YOU ARE NOT REQUIRED TO USE YOUR REAL NAME IN MESSAGE BOARD POSTINGS AND THE DECISION TO DO SO IS MADE AT YOUR SOLE DISCRETION.
      • (c)  Additionally, by submitting Comments you irrevocably grant us the right to use your Comments in connection with the username you provide for any commercial or non-commercial purpose, including to post such Comments as testimonials on our Sites. Herein “use” means display, copy, distribute, modify, adapt, publish, incorporate into other works, create derivative works, and allow third-party sites and services who obtain Comments from us to do the same. You hereby represent and warrant that Comments submitted by you do not violate any right of any third party (including intellectual property rights), and do not contain any libelous, abusive, obscene or otherwise unlawful material.
    • 12.03  Social Media and Other Public Postings.
      • (a)  “Your Content” means content you post online on any social media platform wherein we are tagged or mentioned, including text, usernames or handles, hashtags, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips, and other material related to your post. By posting such content, we may promote and share Your Content through our Sites, email, social media, and any other digital channel in conjunction with the promotion and marketing of our Sites. You irrevocably grant us, and our licensed third parties, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain, repurpose, promote, and commercialize Your Content in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction or notification, and without compensating you in any way, and to authorize others to do the same. We are not responsible for the use or disclosure of any personal data that you voluntarily disclose in connection with Your Content that you license to us in connection with this section. You represent and warrant that you are at least eighteen (18) years old and have all rights necessary for you to grant the licenses granted herein, including but not limited to the rights of publicity and privacy for any person, including minors where parental permission is required, featured in Your Content and the copyright and photographic rights in Your Content.
      • (b)  You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding Your Content that you may have under any applicable law under any legal theory. Finally, you waive any and all claims against Boomerang relating to copyright infringement and/or any invasion or misappropriation of the right of privacy or publicity and warrant that you own or are authorized to grant all rights and permissions granted herein.
13. Termination of Access. We reserve the right at any time in our sole discretion, and without prior notice or liability to you or any third party, to modify, amend, restrict, suspend, deny or terminate your access or the access of all users to the Sites. Such termination may include your ability to post Visitor Content, and may be for any reason or no reason at all. Termination of a license to use the Sites does not constitute termination of these Terms.
14. Electronic Transactions. You agree that your transactions with or through the Sites may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms unless you enter into different terms provided by us.
15. General Terms.
    • 15.01  Required Hardware and Services. Your use of the Sites and the Services may require that you own or have access to a computer, mobile device, broadband internet access, and third-party software, among other things. You are solely responsible for obtaining and maintaining these items and Boomerang is not liable for any failure or delay caused by such items.
    • 15.02  Disputes. These Terms shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to such jurisdiction’s conflict of laws principles. Any action, suit, or proceeding brought by either party to interpret or enforce any provision of these Terms shall be brought only in a state or federal court located in Denver, Colorado. Each party submits to the jurisdiction and venue of such courts and waives any objection to which it otherwise might be entitled regarding such jurisdiction or venue. EACH PARTY HEREBY WAIVES ANY RIGHT IT HAS OR MAY HAVE TO A JURY TRIAL IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS. YOU MAY NOT SEEK TO HAVE A DISPUTE ARISING UNDER OR RELATING TO THESE TERMS HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT IN A REPRESENTATIVE CAPACITY. ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE SOLELY IN YOUR INDIVIDUAL CAPACITY.
    • 15.03  Notices. All notices given under these Terms shall be in writing and will be effective when received by the party to whom directed. All notices shall be delivered by hand or sent (a)by certified mail, return receipt requested, addressed to the party’s address on file, or (b) via email, with confirmation of receipt, addressed to the party’s email address as provided by such party.
    • 15.04  Relationship. No agency, partnership, joint venture, or employment is created as a result of these Terms.
    • 15.05  Entire Agreement. These Terms state the entire agreement between you and Boomerang with respect to the Sites and the other subjects addressed herein and supersede and replace all previous discussions, negotiations, and agreements.
    • 15.06  Waiver. The failure of Boomerang to insist upon the performance of any provision of these Terms or to exercise any right or privilege hereunder will not be construed as waiving such provision or any other provision hereof.
    • 15.07  Severability. If any provision of these Terms are held to be invalid or unenforceable, the parties intend that the provision be enforceable to the maximum extent permitted under law and therefore desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from these Terms with no effect upon the remaining provisions hereof.
    • 15.08  Interpretation. The word “including” means “including without limitation.” These Terms shall not be interpreted against Boomerang.
    • 15.09  Personal Information. By using the Sites, you acknowledge that Boomerang may collect, store, use, and share certain information about you in accordance with the Boomerang's Privacy Notice available on the Sites.

Last Updated: December 18, 2023

Company Information

This Notice applies to all the above referenced entities (individually and collectively referred to as the “Company”) and Company websites, technology platforms, mobile apps, software, systems and/or other service offerings (“Sites”).

Acknowledgment

The Company (sometimes “we,” “us” or “our”) knows that you care how information about you is used and shared, and we appreciate your trust that we will do so carefully and sensibly. This Privacy Notice and Cookie Policy (“Notice”) describes how we treat personal information. This includes on the Sites where it is located, and information related to interest-based online advertising. It also applies to our information collection and tracking practices, correspondence with us, and other data related to specific services or transactions. Any capitalized terms not defined in this Notice are defined in Terms of Use and/or Services Agreement. This Notice applies to our customers and those who engage with our Sites, including store customers, mailing list subscribers, website/platform/mobile app visitors and users, content viewers and downloaders, and for persons contacting us.

If you need any assistance with the Sites, please contact Customer Service via email at support@boomerangdm.com.

PLEASE NOTE THAT THIS AGREEMENT CONTAINS THE FOLLOWING IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND CHOICES:

• OPT-IN AND OPT-OUT POLICY FOR RECEIVING COMMUNICATION FROM US VIA EMAIL, TEXT, OR PHONE CALLS
• BINDING INDIVIDUAL ARBITRATION FOR DATA SUBJECTS IN CERTAIN LOCATIONS THAT AFFECTS YOUR RIGHTS TO SUE UNDER THIS POLICY
• INFORMATION FOR RESIDENTS OF CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, INDIANA, IOWA, MONTANA, OREGON, TENNESSEE, TEXAS, UTAH AND VIRGINIA
• STANDARD CONSUMER RIGHTS AND REQUIREMENTS: INCLUDING BUT NOT LIMITED TO THE RIGHT TO ACCESS, DELETE, OPT-OUT, CORRECTION, COPIES, AND OTHER ITEMS

BY CLICKING ACCEPT, CHECKING AN ACCEPTANCE BOX, ACCESSING OUR SITES, OR USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, HAVE UNDERSTOOD, AND AGREE TO BE BOUND BY THIS NOTICE AS IF YOU HAD SIGNED IT.

We collect information from and about you.

The information we learn from our customers helps us personalize and continually improve your experience. We receive and store any information you enter on the Sites or give us in any other way. Types of information that you may submit and we may collect include:

• Contact Information. We use the information that you provide for responding to your requests, customizing goods or services offerings or suggestions for you, improving our business, and communicating with you. For example, we collect your name and email address if you register on our Sites. We might collect your phone number or zip code. We might also collect your mailing address, or other information depending on the services you request.
• Payment Information. In some instances, we may collect your credit card number or bank information for limited purposes authorized by you. If we do collect such information, this information is deleted after a purchase is made, payment obligations are complete, or ongoing subscription charges are terminated, as may be applicable. Generally, payment information is stored and processed through our third-party partner Authorize.net.
• Information You Submit or Post. We may collect the information you post in a public space on our Sites. We also collect information when you contact or otherwise correspond with us, including but not limited to via emails, calendar invites, phone calls, and other transaction related information.
• Demographic Information. We may collect information like your gender and age, zip code, contact information, and areas of interest or specialty. We might collect this when you contact us or enter a promotion, sweepstakes or contest, or when you make a purchase from or otherwise transact or interact with the Company or others pursuant to the Sites.
• Content and Transaction Related Information. When uploading pictures, reviews, or other information, a name, email address, and other identifying information may be required. Generally, the information collected helps us to communicate with you regarding content that you have submitted to us. For instance, we may use your email address to notify you of the status of the content you have submitted.
• Social Media and Third-Party Information. We may allow data subjects to share our products and services on Facebook, Instagram, Pinterest, or other social media sites. If you decide to share one our products or services, we will get basic information from your social media profile like name, gender, profile photo, and friends or contacts. This information is collected by the social media company and is provided to us under the terms of its own privacy policy. You may be able to control the information that we receive from Facebook using the privacy settings in one’s Facebook account.
• Other. We use the mailing lists or databases you submit to complete your account for us to provided the services you order.

Please Note the Following Regarding Information Submitted to Directly Third-Party Service Providers. As mentioned above, in certain instances your data is not controlled by us and instead is sent directly to third-party service providers, such as but not limited to [vendors utilized to provide the services you’ve ordered]. We employ these third-parties and individuals to perform functions on our behalf. Examples include processing payment, processing applications, analyzing data, providing marketing assistance, providing search results and links (including paid listings and links), processing credit card payments, and providing customer service. Such third-parties have access to personal information needed to perform their functions, and the privacy policies of each third-party should be evaluated by you. We do not take responsibility for these third-parties’ use of your data. A list of all such third parties will be made available to you upon request.

Automatically Collected Information. We receive and store certain types of information whenever you interact with us. For example, like many websites, we use “cookies” and we obtain certain types of information when your web browser accesses Company sites or advertisements. We may collect information about the browser you’re using. We might look at what site you came from, or what site you visit when you leave us. We may also look at clickstream data. We may combine this information with other information we collect from you. This includes anything we collect from third parties. If you use our mobile website, we may collect your GPS location and your unique device identifier.

Device Identifiable Information. We may collect information that does not identify you personally, but is linked to your computer or device (“Device Identifiable Information”). We collect Device Identifiable Information from you in the normal course of operating the Site. When you visit the Site to browse, read or download information, we automatically collect information about your computer that your browser sends, such as your IP address, browser type and language, access times, pages visited, and referring website addresses. We may use Device Identifiable Information we collect to analyze trends, help administer the Sites, track the movement of visitors, to learn about and determine how much time visitors spend on each page of the Sites, how visitors navigate throughout the Sites and to gather broad demographic information for aggregate use.

We may also collect Device Identifiable Information through “cookies” or “web beacons” as explained below.

We may also collect information about your mobile device such as the type and model, operating system (e.g. iOS or Android), carrier name, mobile browser (e.g. Chrome, Safari), applications using the Sites, and identifiers assigned to your device, such as its iOS Identifier for Advertising (IDFA), Android Advertising ID (AAID), or unique device identifier (a number uniquely given to your device by your device manufacturer), sometimes referred to as a mobile carrier ID.

We may also collect your location information, such as your zip code or the approximate geographic area provided by your internet service provider (ISP) or location positioning information provided by the location services and GPS features of your mobile device when location services have been enabled.

We collect information from you directly. We collect information directly from you. We receive and store any information you enter on our Sites or give to us in any other way. For example, we collect information you choose to provide us when you sign up for our emails, calendar, appointment management, or texts alerts, when you use the Sites and when you make purchases from us either online or transact with us in person. We also collect information if you contact us. We collect information about you through the Sites and retail or subscription service related points of contact.

We collect information from you passively. On our platforms, which include our Sites, we collect information passively. We might also collect information passively in our emails or through our apps. We may also collect information passively in connection with third parties. For example, to get purchase information from affiliates, we may gather information passively on their platforms. Tools we use include browser “cookies”, “Pixels” and “Web Beacons”.

“Cookies” are unique identifiers that we transfer to your device to enable our systems to recognize your device and to provide features, such as on Company’s sites, personalized advertisements on other sites, and storage of items in your Orders or similar feature, or between visits. The ‘help’ feature on most browsers will tell you how to prevent your browser from accepting new cookies, how to have the browser notify you when you receive a new cookie, or how to disable cookies altogether. Additionally, you can disable or delete similar data used by browser add-ons, such as Flash cookies, by changing the add-on’s settings or visiting the Site of its manufacturer. Because cookies allow you to take advantage of some of the Company’s essential features, we recommend that you leave them turned on. For instance, if you block or otherwise reject our cookies, you will not be able to add items to your Orders or similar feature, proceed to Checkout, or use any Company products and services that require you to sign in.

“Pixels” “Web Beacons” (also known as web bugs, pixel tags or clear .gifs) are tiny graphics with a unique identifier that may be included on our services for several purposes, including to deliver or communicate with cookies, to track and measure the performance of our services, to monitor how many visitors view our services, and to monitor the effectiveness of our advertising. Unlike cookies, which are stored on the user’s hard drive, Web Beacons are typically embedded invisibly on web pages or in an e-mail.

Social media widgets such as the Facebook “like” button and LinkedIn’s “share” button or other interactive mini-programs may be on our Sites. These features may collect your IP address, which page you are visiting on our Sites, and may set a cookie to enable the feature to function properly. These social media features are either hosted by a third party or hosted directly on the Sites. Your interactions with these features are governed by the privacy policy of the company providing it.

In addition to other third-party data collection applications, we may also use Google Analytics and Google Analytics Demographics and Interest Reporting to collect information regarding visitor behavior and visitor demographics on some of our services, and to develop website content. For more information about Google Analytics, please visit https://policies.google.com/technologies/partner-sites. You can opt out of Google’s collection and Processing of data generated by your use of the services by going to https://tools.google.com/dlpage/gaoptout.

Using Other Technologies. We may use cookies, web beacons, or other similar technologies to operate and provide you access to Sites, applications, services, and tools, and using the technologies necessary to identify irregular site behavior, prevent fraudulent activity and improve security. Using these tools also allow you to make use of our functions such as shopping-carts, saved search, or similar functions. These tools allow us to assess the performance of the Sites, applications, services, and tools, including as part of our analytic practices to help us understand how our visitors use the Sites, to determine if you have interacted with our messaging, determine whether you have viewed an item or link, or to improve the Sites’ content, applications, services, or tools. We have the ability to offer you enhanced functionality when accessing or using our Sites, services, applications, or tools. This may include identifying you when you sign into our Sites or keeping track of your specified preferences, interests, or past items viewed so that we may enhance the presentation of content on our Sites.

Advertising or Targeting Related. We may use first-party or third-party cookies and web beacons to deliver content, including ads relevant to your interests, on our Sites or on third-party sites. This includes using technologies to understand the usefulness to you of the advertisements and content that has been delivered to you, such as whether you have clicked on an advertisement. If you would like to opt-out of the Technologies we employ on our Sites, services, applications, or tools, you may do so by blocking, deleting, or disabling them as your browser or device permits.

We get information about you from third parties. For example, licensure, credentialing, contracts, representatives, affiliates, and social media platforms or plugins may also give us information about you. Affiliates or other business partners may also give us information. This might include information they gathered passively. We may also engage a data provider who may collect web log data from you (including IP address and information about your browser or operating system), or place or recognize a unique cookie on your browser to enable you to receive customized ads or content. These cookies contain no personally identifiable information. The cookies may reflect de-identified demographic or other data linked to data you voluntarily have submitted to us, e.g., your email address, which we may share with a data provider solely in hashed, non-human readable form. To opt-out of these data provider cookies, please go to http://www.aboutads.info/choices.

How We Use Your Information. Information about our customers is an important part of our business, and we are not in the business of selling it to others, though it may be shared with others for the purpose of carrying out our Services. We share customer information only as described in this Notice. 

• We use information to administer our Services. For example, we use information to assist with targeted suggestions, tracking, determining engagement, communications with you, and to evaluate the products we offer.
• We use information to respond to your requests or questions. For example, we might use your information to respond to your questions about our services or offerings, for customer feedback, etc.
• We use information to improve our products and services. We may use your information to make our Sites better. We might use your information to customize your experience with us or understand your preferences. We may combine information we get from you with information about you we get from third parties.
• We use information to communicate with you. We may send you emails, calendar invites, telephone or written reminders, and regular text messages you have consented to receive, such as promotional messages and messages.
• We use various tracking technologies. We, and other third parties we work with, use several common data collection technologies including cookies, pixel tags, and similar technologies. We collect personal information about users over time and across different Web sites when you use this Web site or service. We may also have third parties that collect personal information this way. We do this for many reasons, including to engage in interest-based advertising, to understand the activities and behaviors of customers and platform users, to recognize new and past visitors to the Sites, to present more personalized content and offers, to improve the Sites’ experience, optimize your customer experience, and provide site and service enhancements, to avoid repeatedly showing you the same advertisements or transaction related notifications, to serve customized advertising (whether on the Sites or others you visit) and so we can better understand our audience, our customers, our visitors, and their respective interests. We work with third parties who provide us with certain web search services.
• We use information for security purposes. We may use information to protect our Company, our customers, and the Sites.
• We use information for marketing purposes. If you register with our Sites or if you opt-in to receiving messages from us in any other way, we may send you information about special offers, new products, or new services. These might be third party offers or products we think you might find interesting. Depending on your choice we may send this type of information via email, text, call, push notifications in apps, or notifications by regular mail. We also use information to customize offers you receive. This includes using your purchase related history on affiliates or other third-party platforms.
• We utilize third-party service providers, and use your information to perform those functions. We employ other companies and individuals to perform functions on our behalf. Examples include fulfilling orders or delivering our services, delivering documents, correspondence, calendar invites and the like, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, providing search results and links (including paid listings and links), processing credit card payments, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes.
• We use information to communicate with you about your account or our relationship. We may contact you about your account or feedback. We might also contact you about this Notice or the Sites’ Terms.
• We will share information if we think we have to in order to comply with the law or to protect ourselves. We release account and other personal information when we believe release is appropriate to comply with the law; enforce or apply our Terms of Use and other agreements; or protect the rights, property, or safety of the Company, our users, or others. This includes exchanging information with other companies and organizations for fraud protection and credit risk reduction. Obviously, however, this does not include selling, renting, sharing, or otherwise disclosing personally identifiable information from customers for commercial purposes in violation of the commitments set forth in this Notice.
• We will share information with third parties who perform services on our behalf and affiliates. For example, we share information with vendors who send emails for us. We may also share information with companies that operate the Sites or run a promotion. We may also share the information with our subsidiaries and affiliates.
• We may share information with our business partners. This includes sharing for marketing or advertising or for purposes of running joint promotions. For example, we will share information with our affiliates to administer services or assist with appointments, process orders or understand preferences, or we might share information that third parties can use to serve you with ads they think you will like. This could include sharing with our partners what ads you view, and those third parties may use information for their own marketing or advertising purposes.
• We may share information with any successor to all or part of our business. As we continue to develop our business, we might sell or buy stores, subsidiaries, or business units. In such transactions, customer information generally is one of the transferred business assets but remains subject to the promises made in any pre-existing Notice (unless, of course, the customer consents otherwise). Also, in the unlikely event that Company, or substantially all of its assets are acquired, customer information will of course be one of the transferred assets.
• We may share information for other reasons we may describe to you.

Your Choice to Opt-In or Opt-Out (Subject to Jurisdiction Specific Opt-In or Opt-Out Information Below)

You have the choice to opt-in to or opt-out from receiving certain emails or text messages to the email address or mobile number you provide to us at any time. Please see below for ways to opt-in or opt-out of receiving certain communication from us.

General Opt-In.

If you have opted-in to receiving messages from us, you expressly acknowledge consent to receiving such messages to the email, phone number, and address you have provided us, and that such messages may be from an automated system.

If you have opted-in to receive text messages we do not charge you for the text message, provided, however, that standard messaging and data rates will apply to each text message in accordance with your wireless plan and your carrier’s policies. We do not require you to agree to receive text messages as a condition of making any purchase.

If you need help with text messages call us at (303) 997-7047 or contact us by email at support@boomerangdm.com. Text messages may not be delivered to you due to factors beyond our control such as transmission range, your carrier’s policies, or your phone plan.

Any communication or material you transmit to us by email or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and non-proprietary. Except to the extent expressly covered by this Notice, anything you transmit or post may be used by us for any purpose, including but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, you expressly agree that we are free to use any ideas, concepts, know-how, or techniques contained in any communication you send to us without compensation and for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products and services using such information.

General Opt Out

The Self-Regulatory Program for Online Behavioral Advertising program provides consumers with the ability to opt-out of having their online behavior recorded and used for advertising purposes. If you want to opt out, visit http://optout.aboutads.info/ . Your opt-out is both browser and device specific.

You can always choose not to provide information, even though it might be needed to make a purchase or to take advantage of such Company features as Your Account and our general service offerings. In instances where the information is needed to complete a transaction or fulfill service offerings you request, these rights may not be available.

To stop receiving our promotional emails, you may opt-out by one of the following methods:

• Selecting the “Unsubscribe” link in any promotional email using the unsubscribe link https://url6832.boomerangdm.com/asm/
• Visiting your account and unsubscribing at https://www.boomerangdm.com/subscribers/contactinfo or logging into your account to change preferences (as applicable)
• Emailing us at support@boomerangdm.com

To stop receiving our promotional texts, you may opt-out by one of the following methods:

• Replying STOP to any text message we send you
• Texting STOP at any time to (833) 677-0836 or calling (303) 997-7047
• Visiting your account and unsubscribing at https://www.boomerangdm.com/subscribers/contactinfo or logging into your account to change preferences (as applicable)
• Emailing us at support@boomerangdm.com

If you opt-out of receiving text messages, you may receive one final text message confirming your decision to unsubscribe. Opting out of one form of communication does not mean you’ve opted out of other forms as well. For example, if you opt out of receiving marketing emails, you may still receive marketing texts. Even if you opt out of getting marketing messages, we will still send you appointment related messages. These include responses to your questions. If you receive promotional emails from a third party, you will need to separately opt-out with them.

We Engage in Interest-Based Advertising.

Company and our third-party partners display interest-based advertising using information gathered about you over time across multiple websites or other platforms. This might include apps. Interest-based advertising includes ads served to you after you leave the Sites, encouraging you to return. They also include ads we think are relevant based on your purchasing habits or online activities. For example, providing you with promotional materials we think you would like based on your purchase or Company involvement activity. These ads might be served on websites or on apps. They might also be served in emails. We might serve these ads, or third parties may serve ads. They might be about our products or other companies’ products.

To decide what is relevant to you, we use information you make available to us when you interact with us, our affiliates, and other third parties. For example, we or our partners might look at your selections or usage behaviors. We might look at these activities on our platforms or the platforms of others. We work with third parties who might help gather this information or with whom we might share your information. These third parties might link your name or email address to other information they collect. That might include past purchases made offline or online, or it might include online usage information.

You can request access to certain information. You may request access to the personal information we maintain about you or request that we correct, amend, delete or block the information by emailing us at privacy@boomerangdm.com. You may withdraw any consent you previously provided to us or object at any time on legitimate grounds to the processing of your personal information, and we will apply your preferences going forward.

You can control cookies and tracking tools. Your browser may give you the ability to control cookies, but it is dependent upon the type of cookie. Certain browsers can be set to reject browser cookies. Flash cookies cannot be controlled through your browser settings, so to control flash cookies, which we may use on certain websites from time to time, you can go here.

If you block cookies on your browser, certain features on our Sites may not work. If you block or delete cookies, not all of the tracking activities we have described here will stop. Choices you make are both browser and device-specific.

You can control tools on your mobile devices. For example, you can turn off the GPS locator or push notifications on your phone. You can also control these settings in our apps.

Specific State Privacy Rights. Depending on your location and other factors, specific state laws may apply. Note, however, that we make no representation or promise that such laws apply, it being acknowledged that this Notice alone does not grant you such rights even if you are a resident of such states. For the following rights to apply to you, other statutory thresholds and pre-requisites must be met beyond your place of residence and our posting of the following state-specific notices. Moreover, to the extent language elsewhere in this Notice and the language of each jurisdiction-specific section below conflict, the language in this jurisdiction-specific section shall control where applicable.

To the extent a given state’s laws do apply to you because: (i) you enjoy the benefit and protection of the laws and government of each of the respective states and jurisdictions listed below, as applicable; and (ii) all threshold requirements for applicability are met, without exceptions or exemptions dictating otherwise, the following shall apply:

California.

California and Delaware “Do Not Track” Disclosures.

Colorado.

Connecticut.

Delaware.

Indiana.

Iowa.

Montana.

Oregon.

Tennessee.

Texas.

Utah.

Virginia.

Our Sites/Minors. Our Sites are meant for people at least 18 years old. We do not knowingly collect personally identifiable information from children under 13 without permission from a parent or guardian. If you are a parent or legal guardian and think your child under 13 has given us information, you can email us at privacy@boomerangdm.com or you can write to us at the address listed at the end of this Notice. Please mark your inquiries “COPPA Information Request.” Parents, you can learn more about how to protect children’s privacy on-line here: http://www.business.ftc.gov/privacy-and-security/childrens-privacy.

We store information in the United States. Information we maintain is stored within the United States. If you live outside of the United States, you understand and agree that we may transfer your information to the United States. The Sites are subject to U.S. laws, which may not afford the same level of protection as those in your country.

We use standard security measures. We use reasonable measures to protect the information you share with us. This includes physical measures. It also includes technical and administrative measures. We use firewall encryption where appropriate. We may also use Secure Socket Layer encryption. Please remember that no data security measures are 100% secure all of the time. We keep personal information as long as it is necessary or relevant for the practices described in this Notice. We also keep information as otherwise required by law.

Our Sites and Do Not Track Signals. Some browsers transmit Do Not Track (DNT) signals to websites. Due to the lack of a common interpretation of DNT signals throughout the industry, we do not currently alter, change, or respond to DNT requests or signals from these browsers. We will continue to monitor industry activity in this area and reassess our DNT practices as necessary.

You can update your information stored via account. To update your information stored via a personal account, log into the site and click the “My Account” link at the top of our site. You can also update it by clicking here https://www.boomerangdm.com/subscribers/contactinfo. It may take us up to 10 business days to process account changes.

We may link to other sites or have third party services on our Sites we do not control. If you click on a link to a third-party site, you will be taken to websites we do not control. This Notice does not apply to the privacy practices of that website. Read the privacy policies of other websites carefully. We are not responsible for these third-party sites. Our Sites may also serve third party content that contains their own cookies or tracking technologies. We do not control the use of those technologies. We also do not control the privacy practices of our affiliates. This includes their use of cookies and other tracking technologies.

How to Contact Us. If you have any questions or concerns about this Notice, you may contact us at:

Boomerang Direct Marketing, LLC

Attn: Privacy

9155 E Nichols Ave., #175

Centennial, CO 80112
Email: privacy@boomerangdm.com

Disclaimer, Limitation of Liability and Indemnity

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THE SITES, ALL CONTENTS AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN ‘AS IS’ BASIS. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SITES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SITES OR ITS SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS. ALTHOUGH COMPANY ENDEAVORS TO PROVIDE ACCURATE INFORMATION, IT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY OR RELIABILITY OF INFORMATION ON THE SITES. YOUR USE OF THE SITES IS AT YOUR OWN RISK. NEITHER Company NOR ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS OR CONTENT PROVIDERS SHALL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT OR INDIRECT LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHERWISE), INJURY, CLAIM, OR LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER BASED UPON OR RESULTING FROM YOUR USE OR INABILITY TO USE THE SITES, OR ANY INFORMATION OR MATERIALS PROVIDED ON THE SITES. COMPANY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY MATERIALS ON THE SITES, OR WITH ANY OF COMPANY’S TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITES. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DISTRIBUTORS, VENDORS AND AFFILIATES FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, LIABILITIES, COSTS OR EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING OR ARISING OUT OF YOUR BREACH OF ANY OF THIS NOTICE.

Indemnification. You agree to indemnify and hold Company, its affiliates and their respective parents, subsidiaries officers, directors, employees, agents and representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising in any way out of: (a) your participation in the Sites, (b) any violation of this Notice by you, (c) the violation, infringement or misappropriation by you, or another using your account, of any intellectual property or other right of any person or entity, including, but not limited to, trademark, copyright, right of publicity and right of privacy, or (d) any pornographic, hate-related, threatening, libelous, obscene, harassing or otherwise objectionable or offensive material contained in any of your postings or other communications.

Terms and Conditions, Notices, Revisions.

If you choose to visit any of our Sites, your visit and any dispute over the terms and conditions of the Sites or your use of or purchase of products through the Sites is subject to this Notice and our Terms and Conditions, including limitations on damages, resolution of disputes, and application of the law of the State of Colorado to certain aspects. Our business changes constantly, as will our Notice and the Terms of Conditions. We may post a banner and a link on our main homepage at https://www.boomerangdm.com/index notifying you of any material change so please check the Sites frequently for such recent changes.

Except where prohibited, by visiting and using the Sites, you agree that (1) any and all questions, controversies, claims and causes of action arising out of or connected with the construction, validity, interpretation, and enforceability of this Notice shall be brought in a court of competent jurisdiction located in Denver, Colorado, and shall be resolved individually, without resort to any form of class action or representative action, and you agree that you shall not seek to aggregate any claims with other individuals. (2) COMPANY’S LIABILITY ARISING IN CONNECTION WITH THIS NOTICE WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF $1.00 AND SHALL BE FURTHER LIMITED TO ACTUAL DAMAGES EQUAL TO OR LESS THAN SUCH AMOUNTS, RESPECTIVELY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, COMPANY SHALL NOT BE LIABLE FOR, AND YOU WAIVE ALL RIGHTS TO CLAIM ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR ATTORNEYS’ FEES ARISING OUT OF THIS USER GENERATED CONTENT POLICY, AND ANY AND ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED (EVEN IF YOU OR ANY OF YOUR AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), AND TO RECOVER OTHER SUCH RELATED COSTS OF BRINGING A CLAIM, NOR SHALL AN ENTRANT BE ENTITLED TO RESCIND THIS AGREEMENT NOR SEEK INJUNCTIVE OR ANY OTHER EQUITABLE RELIEF; (3) you consent to collection of personal information; (4) you are granted a right to know what personal information has been collected upon request, including what is sold or disclosed, and to whom; (4) the right to opt out of any sale of personal information; (5) the right to deletion of any personal information; and (6) the right to non-discrimination with respect to any personal information.

Non-Waiver. The failure of us to insist upon performance of any of the terms and conditions of this Notice, or the waiver of any breach of, or the decision to not exercise any of its rights under, any of the terms or conditions of this Notice, shall not be construed as thereafter waiving any such terms and conditions, or any other terms and conditions of this Notice. Any waiver must be in writing and signed by us.

The failure of us to comply with this Notice because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of the Company, shall not be deemed a breach of this Notice.

Legal Basis for Data Processing. We process Personal Data for the purposes set out in this Notice, as described above. Our legal basis to process Personal Data includes processing that is: necessary for the performance of the contract between you and the Company (for example, to facilitate a purchase on Company, to provide you with other services that you request, or for resolving billing or customer service inquiries related to your use of our services); necessary to comply with legal requirements (for example, to comply with applicable accounting rules or to make mandatory disclosures to law enforcement); necessary for our legitimate interests (for example, to manage our relationship with you and to improve the website and our services); and, where legally required and we have no other valid legal basis to process Personal Data, we will use consent by our customers (for example, to provide you with marketing information or share information with third parties), which may subsequently be withdrawn at any time (by emailing privacy@boomerangdm.com without affecting the lawfulness of processing based on consent before its withdrawal. In some instances, you may be required to provide us with Personal Data for processing as described above, in order for us to be able to provide you all of our services, and for you to use all the features of the Sites.

International Transfers of Personal Data. To the extent that the Company is subject to the laws of the European Union or other third country when processing personal data (“Personal Data”), it shall be the “data controller” under such laws. The nature of the Company’s business means that the Personal Data collected through our services will be transferred to the United States. Also, the Company personnel and some of the third-parties to whom we disclose Personal Data (as set out above) are located in the United States. We take appropriate steps to ensure that recipients of your Personal Data are bound to duties of confidentiality, and we implement measures such as standard data protection contractual clauses to ensure that any transferred Personal Data, remains protected and secure. If you are aware of changes or inaccuracies in your information, you should inform us of such changes so that our records may be updated or corrected. You may contact us at privacy@boomerangdm.com. You may lodge a complaint with a supervisory authority if you consider that our processing of your Personal Data infringes applicable law. A list of EU data protection authorities is available at https://edpb.europa.eu/about-edpb/about-edpb/members_en.

Content Uploader. We respect the intellectual property rights of third parties and respond to allegations that copyrighted material has been shared through our Sites (“Platform”), without authorization from the copyright holder, in accordance with the safe harbor set forth in the Digital Millennium Copyright Act (“DMCA”). We will also, in appropriate circumstances and at our discretion, disable and/or terminate the use of the Platform by users who may infringe or repeatedly infringe the copyrights of others in accordance with the DMCA.

Last Updated On: November 29, 2023

This Services Agreement (this “Agreement”), along with any written or online order forms, sign-up forms, work orders, or statements of work (each, an “Order Form”) and all other documents incorporated into this Agreement, constitute a legally binding agreement by and between Boomerang Direct Marketing, LLC, a Colorado limited liability company (“Boomerang”), and the person or entity listed on the Order Form (the “Customer”) (each of Boomerang and Customer is a “Party” to this Agreement).

1. Acceptance; Scope. By completing an Order Form and submitting it to Boomerang, Customer agrees to this Agreement. This Agreement governs Boomerang’s provision to Customer of the services described on the Order Form (“Services”).
2. Order Form. Boomerang may reject an Order Form for any reason; if Boomerang rejects an Order Form, neither Party will have any obligation under the Order Form. If Boomerang accepts an Order Form, Boomerang will, subject to this Agreement, use reasonable efforts to provide the Services to Customer timely and in a good and workmanlike manner.
3. Term and Termination.
   • 3.01  Service Term.
     • (a)  Service Term. The term for the provision of a Service (the “Service Term”) is specified in the Order Form. The Service Term may be monthly, annual, or any other period. If no Service Term is specified in the Order Form, the Service Term is monthly.
     • (b)  Monthly Service Term. If the Service Term is monthly, the Service Term will automatically renew for another month unless a Party gives written notice of non-renewal to the other Party on or before the Non-Renewal Notice Date. “Non-Renewal Notice Date” means (i) the 5^th day of the month for Market IQ (as defined on Boomerang’s Website) Services, (ii) the 20^th day of the month for Offer Card (defined below) Services, and (iii) the 20^th day of the month all other Services. Boomerang’s Website or an Order Form may specify different Non-Renewal Notice Dates for specific Services, and those dates shall take precedence over the Non-Renewal Notice Dates set forth herein. If Customer is provided with Services every other month, such Service Term shall be considered monthly for purposes of this Agreement.
     • (c)  Annual Service Term. If the Service Term is annual or any period other than monthly, the Service Term will renew at the end of the Service Term for another term equal in length to the previous term; provided, however, that if a Party gives the other Party notice of non-renewal at least 30 days before the end of the then-current Service Term, the Service Term will not renew and will expire.
   • 3.02  Termination for Breach. A Party may terminate the applicable Service Term or this Agreement by giving written notice to the other Party if the other Party fails to cure its material breach of this Agreement within 14 days of receiving written notice of the breach. If Boomerang terminates for Customer’s breach, Boomerang shall not refund pre-paid fees. If Customer terminates for Boomerang’s breach, Boomerang shall refund pre-paid fees for Services to be performed after termination.
   • 3.03  Effect of Termination. Upon the termination of a Service Term, Boomerang shall cease providing the applicable Services. Termination of this Agreement shall terminate all active Service Terms. A Party’s right to terminate is in addition to all other right available under this Agreement, at law, or in equity. All provisions of this Agreement which by their nature should survive termination of this Agreement to give effect to the Parties’ intent shall survive termination of this Agreement, including the confidentiality, limitations of liability, and indemnification provisions set forth herein.
4. Fees.
   • 4.01  Monthly Service Term. If the Service Term is monthly, Customer shall pay the fees set forth in the Order Form for Services. Monthly recurring fees are due and payable during each Service Term in advance of the provision of Services. All other fees fees, if any, are due and payable as set forth in the Order (if not set forth in the Order Form, then immediately upon Boomerang’s acceptance of an Order Form). Boomerang may change its fees by giving Customer at least 30 days’ prior written notice.
   • 4.02  Annual or Other Service Terms. If the Service Term is annual or any period other than monthly, the Customer shall pay the fees set forth in the Order Form pursuant to the schedule set forth in the Order Form (if a payment schedule is not provided in the Order Form, fees are due and payable in advance on the first business day of the Service Term). Boomerang may change its fees, to be effective at the beginning of any renewal Service Term, by giving Customer at least 60 days’ prior written notice.
   • 4.03  General Terms. Customer shall pay all fees and other amounts as they become due. Fees do not include applicable taxes, and Customer shall pay or remit to Boomerang all taxes imposed on the Services (excluding only taxes on Boomerang’s income). Boomerang may require Customer to maintain with Boomerang a valid form of payment (e.g., credit card or ACH) during the Service Term. Customer authorizes Boomerang to change such form of payment for all fees and other amounts owed hereunder when the same is due. If Boomerang invoices Customer for any amounts owed hereunder, the amount is overdue 14 days after Customer’s receipt of the invoice. Boomerang may change a late fee of 1.5% per month, not to exceed the maximum rate permitted under law, on all overdue amounts. Customer shall reimburse Boomerang for all costs of collecting overdue amounts, including attorneys’ fees. Boomerang may suspend the provision of Services until all overdue amounts are paid in full. Unless otherwise set forth herein, all fees are non-refundable once paid. If the volume of Customer Data (defined below) exceeds the limit in an Order Form, additional fees may apply.
5. Customer Obligations.
   • 5.01  Generally. Customer may not use Services in violation of applicable laws or in violation of Boomerang’s or any third party’s rights, including intellectual property rights. Boomerang may change, suspend, or discontinue any aspect of any Service at any time. Each Order Form may contain provisions that are applicable to specific Services.
   • 5.02  Offer Cards. Boomerang partners with local businesses (i.e., coffee shops, restaurants, events, etc.) (“Business Partners”) who provide discounts, coupons, offers, incentives, etc., for their goods or services (“Offers”). Boomerang produces direct mail cards combining Offers with Customer’s marketing message (“Offer Cards”) and mails the Offer Cards to a list of addresses provided by Customer or provides the Offer Cards to Customer for distribution. Customer shall not distribute Offer Cards near a Business Partner’s place of business or in any manner not approved by Boomerang. In addition to Boomerang’s other rights hereunder, Boomerang may immediately terminate Customer’s Services (without any refund of pre-paid fees) if Customer violates this paragraph.
   • 5.03  Customer Data. To receive Services, Customer may be required to provide certain information to Boomerang, including personally identifying information (“Customer Data”). Customer grants Boomerang the right and license to use Customer Data to provide Services to Customer. Customer represents and warrants to Boomerang that (a) Customer has all rights necessary to disclose Customer Data to Boomerang and (b) Boomerang’s use of Customer Data in accordance with this Agreement will not violate any third party’s rights or the law.
6. Confidentiality.
   • 6.01  Definition of Confidential Information.
     • (a)  “Confidential Information” means all information that a Party or its Affiliates (collectively, the “Disclosing Party”) discloses to or is learned by the other Party or its Affiliates (collectively, the “Receiving Party”) that falls within one or more of the following categories: (i) any information identified as confidential by the Disclosing Party; (ii) any information, including a formula, pattern, compilation, program, device, method, technique, or process, that (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is subject to efforts that are reasonable under the circumstance to maintain its secrecy; (iii) the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value; (iv) any information which the Receiving Party knows or reasonably should know that the Disclosing Party is required to keep confidential under a binding obligation with a third party or under law; and (v) all information which the Receiving Party knows or reasonably should know could be detrimental to the interests of the Disclosing Party if disclosed or used without authorization, whether or not such information is identified as confidential. The term “information” refers to data or information in any form or medium. All Address Lists are Customer’s Confidential Information.
     • (b)  Information that falls into any one or more of the following categories will not constitute Confidential Information: (i) information that is or becomes part of the public domain through no fault of the Receiving Party, under circumstances not involving a violation of the rights of the Disclosing Party; (ii) information that the Receiving Party can show was known by the Receiving Party prior to receipt from the Disclosing Party; (iii) information that the Receiving Party can show was independently developed by or for the Receiving Party without relying on Confidential Information; and (iv) information that the Receiving Party can show was rightfully received from a third party who is not under any obligation to maintain the confidentiality of such information, under circumstances not involving a violation of the rights of the Disclosing Party.
   • 6.02  Protection of Confidential Information. The Receiving Party will not, directly or indirectly, without the written consent of the Disclosing Party, (a) disclose, transfer, or otherwise communicate to any third party any Confidential Information or (b) use Confidential Information for any purpose other than as necessary to exercise its rights and perform its obligations hereunder.
   • 6.03  Disclosure by Court Order or Law. The Receiving Party will not be in breach of the obligations hereunder to the extent that it provides Confidential Information under a court order or discloses Confidential Information as required by law. Before the Receiving Party discloses Confidential Information under this paragraph, the Receiving Party must (except to the extent it is illegal to do any of the following): (a) promptly notify the Disclosing Party in writing of the court order or legal requirement; (b) give the Disclosing Party a reasonable opportunity to contest or limit the required disclosure; and (c) provide reasonable assistance at the Disclosing Party’s expense.
   • 6.04  Return of Confidential Information. Upon the termination or expiration of this Agreement or upon demand by the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party the originals and all copies of all materials and writings received from, created for, or belonging to the Disclosing Party which relate to or contain Confidential Information and delete all electronically stored materials which relate to or contain Confidential Information. The foregoing shall not apply to information stored in electronic data backup systems, it being impractical to delete such information, but such information shall continue to be Confidential Information subject to this Agreement. The Receiving Party shall provide written certification that it has complied with this paragraph upon request of the Disclosing Party.
7. DISCLAIMERS. EXCEPT FOR BOOMERANG’S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, BOOMERANG DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN STATEMENTS MADE BY BOOMERANG OR ANY THIRD-PARTY ABOUT THE SERVICES OR THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
8. LIMITATIONS OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS SENTENCE SHALL NOT LIMIT CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN. BOOMERANG SHALL NOT BE LIABLE TO CUSTOMER FOR DAMAGES FOR LOST PROFITS, LOST REVENUE, OR LOST BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT. BOOMERANG’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES CUSTOMER PAID TO BOOMERANG IN THE 12 MONTH PERIOD IMMEDIATELY BEFORE THE EVENT GIVING RISE TO LIABILITY. BOOMERANG SHALL NOT BE LIABLE TO CUSTOMER FOR CIRCUMSTANCES BEYOND BOOMERANG’S REASONABLE CONTROL, INCLUDING ACTIONS OF BUSINESS PARTNERS, THE GOVERNMENT, MAIL CARRIERS, TELECOMMUNICATIONS PROVIDERS, OR OTHER THIRD PARTIES, OR FOR SABOTAGE, FIRE, FLOOD, PANDEMIC, OR WEATHER. CUSTOMER HEREBY RELEASES AND DISCHARGES EACH BUSINESS PARTNER FROM AND AGAINST ANY LIABILITY INCURRED BY CUSTOMER ARISING UNDER OR RELATED TO ANY OFFER, EXCEPT (1) WITH RESPECT TO BODILY INJURY OR DAMAGE TO PHYSICAL PROPERTY OR (2) TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUSINESS PARTNER. IN NO EVENT WILL BOOMERANG BE LIABLE FOR CUSTOMER’S ATTORNEYS’ FEES OR OTHER COSTS ASSOCIATED WITH ANY DISPUTE BETWEEN THE PARTIES, AND CUSTOMER AGREES NOT TO CLAIM, SEEK, OR COLLECT THE SAME FROM BOOMERANG.
9. Indemnification. Customer shall indemnify and hold harmless Boomerang, Boomerang’s Business Partners, Boomerang’s Affiliates, and the directors, managers, officers, employees, contractors, and agents of the foregoing (collectively, the “Indemnified Parties”) from and against any and all liabilities, damages, losses, judgments, fines, and expenses, including reasonable attorneys’ fees and costs, incurred as a result of any action, suit, proceeding, or claim brought or made by a third party (a “Third-Party Claim”) arising out of or related to Customer’s or Customer’s Affiliates’ (1) negligence or willful or intentional misconduct or (b) breach of this Agreement (including breaches of Customer’s representations and warranties set forth herein). Upon request by an Indemnified Party, Customer shall defend the Indemnified Party against a Third-Party Claim.
10. General Terms.
    • 10.01  Notices. All notices under this Agreement shall be in writing and will be effective (a) on the first business day after delivery, if delivered by hand or courier to the Party’s business address, (b) three business days after being deposited in the U.S. Mail, certified, prepaid, and return receipt requested, addressed to the Party’s address on file, or (c) on the first business day after being sent by email, read receipt requested, addressed to the Party’s email address on file.
    • 10.02  Relationship. No agency, partnership, joint venture, or employment relationship is created under this Agreement. Boomerang is an independent contractor of Customer for purposes of this Agreement.
    • 10.03  Website Terms of Use and Privacy Policy. Boomerang’s Terms of Use (“Terms of Use”) govern use of Boomerang’s websites (the “Website”) and are incorporated herein by reference. Boomerang’s Privacy Policy (“Privacy Policy”) describes how Boomerang handles personally identifiable information. The Terms of Use and Privacy Policy are available at https://www.boomerangdm.com/. The Terms of Use and Privacy Policy may be updated from time to time.
    • 10.04  Order of Precedence. Any conflict among the various documents that comprise this Agreement shall be resolved in the following order of precedence: (a) the applicable Order Form; (b) the body of this Agreement; and (c) the Terms of Use.
    • 10.05  Amendments. Boomerang may amend this Agreement from time to time by posting a revised version of this Agreement on its Website and giving Customer written notice of the amendment. The amendment will take effect on the first business day of the calendar month that is at least 14 days after Boomerang gives Customer notice of the amendment; provided, however, that if there is a Minimum Service Term in effect, the amendment will not take effect until the end of the Minimum Service Term.
    • 10.06  Boomerang’s Intellectual Property Rights. Boomerang’s Website and the Services, including their “look and feel” (e.g., text, graphics, images, logos, and button icons), photographs, editorial content, notices, software (including html-based computer programs), and other material (“Content”), are protected under United States law. Any distribution, reprint, or electronic reproduction of any Content is expressly prohibited without Boomerang’s prior written consent. Customer shall not to use, nor permit any third party to use, the Services or Content in a manner that violates the law or this Agreement or any other agreement to which Customer is bound.
    • 10.07  Injunctive Relief. The breach or threatened breach of this Agreement by Customer would materially harm Boomerang and money damages might not adequately compensate Boomerang. Therefore, in addition or any other remedy available at law or in equity and without the obligation to post a bond, Boomerang shall be entitled to injunctive relief, including specific performance, to prevent the breach or further breach of this Agreement. Customer shall reimburse Boomerang for all costs and expenses, including attorneys’ fees, incurred in obtaining injunctive relief.
    • 10.08  Disputes. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to such jurisdiction’s conflict of laws principles. Any action, suit, or proceeding brought by either Party to interpret or enforce any provision of this Agreement shall be brought only in a state or federal court located in Denver, Colorado. Each Party submits to the jurisdiction and venue of such courts and waives any objection to which it otherwise might be entitled regarding such jurisdiction or venue. EACH PARTY HEREBY WAIVES ANY RIGHT IT HAS OR MAY HAVE TO A TRIAL JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. WITHOUT BOOMERANG’S PRIOR WRITTEN CONSENT, CUSTOMER MAY NOT SEEK TO HAVE A DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, OR IN ANY PROCEEDING IN WHICH CUSTOMER ACTS IN A REPRESENTATIVE CAPACITY AND ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE SOLELY IN CUSTOMER’S INDIVIDUAL CAPACITY.
    • 10.09  Assignment. Customer may not assign this Agreement or any obligations hereunder without the prior written consent of Boomerang.
    • 10.10  Entire Agreement. This Agreement states the entire agreement between the Parties with respect to the Services and the other subjects addressed herein and supersedes and replaces all previous discussions, negotiations, and agreements.
    • 10.11  Waiver. The failure of Boomerang to insist upon the performance of any provision of this Agreement or to exercise any right or privilege hereunder will not be construed as waiving such provision or any other provision hereof.
    • 10.12  Severability. If any provision of this Agreement is held to be invalid or unenforceable, the Parties intend that the provision be enforceable to the maximum extent permitted under law and therefore desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from this Agreement with no effect upon the remaining provisions hereof.
    • 10.13  Interpretation. The heading used in this Agreement are for reference only and may not be used to interpret this Agreement. The word “including” means “including without limitation.” “Affiliate” means an entity or person that controls, is controlled by, or is under common control with another entity or person. This Agreement shall be interpreted as if jointly drafted by the Parties.