Terms

BOLT INTAKE APP® STANDARD TERMS

These Bolt Intake App® Standard Terms (the “Terms”) are incorporated into and considered material terms of the written “BOLT INTAKE APP® Agreement” or “Bolt Intake App Order Form” executed by a Customer in connection with Customer’s license of the Bolt Intake App® and Bolt Digital’s provision of the services specified in the Customer’s written Order Form or Agreement (hereinafter, the “Agreement”). Bolt Digital and Customer are referred to herein individually, as a “Party” and, collectively, as the “Parties.”

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  1. DEFINITIONS. Capitalized terms not defined these Terms have the meaning given thereto in the Agreement. Other capitalized terms shall have the respective meaning set forth below:

1.1. “Confidential Information” means nonpublic information, in any form or medium, that is either designated as proprietary and/or confidential by the disclosing Party or, by the nature of the circumstances surrounding disclosure ought in good faith to be treated as proprietary and/or confidential. Confidential Information shall not include any information that: (a) was publicly known at the time of its receipt by the receiving Party or has become publicly known other than by a breach of the Agreement or any other obligation of confidentiality; (b) was already known by the receiving Party prior to its disclosure without obligation to keep it confidential as evidenced by prior documentation thereof; (c) is developed independently by the receiving Party without use of or reference to the other Party’s Confidential Information; or (d) is received by the receiving Party in good faith from a Third Party lawfully in possession thereof without obligation to keep such information confidential and without requiring the receiving Party to keep the information confidential. Bolt Digital Confidential Information includes the Bolt Intake App®, and Customer Confidential Information includes Customer Data.

1.2 “Customer Data” means all data and information input into Bolt Intake App® by or on behalf of Customer or Customer Users or produced or generated therefrom.

1.3 “Customer Materials” means any information, materials, systems, or technology owned or licensed to Customer, including Customer Data, which Customer may provide to or allow Bolt Digital to access in connection with its provision of the Bolt Intake App® and/or Services.

1.4 “Customer Users” means Customer’s employees, contractors, and agents authorized by Customer to access and use the Bolt Intake App® in accordance with the Agreement.

1.5 “Fees” means, collectively, the fees specified in the Agreement.

1.6 “IPR” means any and all intellectual property or other proprietary rights protectable by law anywhere throughout the world, including any patents, copyrights, trademarks, service marks, domain names, trade secrets, know-how, or similar rights protectable under any laws or international conventions throughout the world, and in each case including any improvements, enhancements or modifications to, or derivative works from, any of the foregoing.

1.10 “Services” means, collectively, the following services as specified in the Agreement: (a) Setup/On-Boarding/Training services, and (b) monthly services.

  1. LICENSE.

2.1 Grant. During the Term, Bolt Digital hereby grants to Customer a limited, non-transferable, non‑exclusive license, without the right to sublicense, to access and use the Bolt Intake App® solely for Customer’s internal business purposes.

2.2 Restrictions. Customer will not, directly or indirectly, (a) modify, adapt, alter, translate, or create derivative works from the Bolt Intake App®; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, timeshare, provide on a service bureau basis, or otherwise commercially exploit, make available, or allow any third party to access or use the Bolt Intake App® in any way; (c) create Internet “links” to the Bolt Intake App® or “frame” or “mirror” the Bolt Intake App®; (d) alter, distort, or remove any IPR legends or marks from any copy of the Bolt Intake App® or any documentation associated therewith; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Bolt Intake App®; or (f) otherwise access, use, or copy the Bolt Intake App® in any manner not expressly permitted herein, including accessing the Bolt Intake App® in order to (i) build a competitive product or service, or (ii) build a product using ideas, features, functions, templates, or graphics similar to those on any part of the Bolt Intake App®.

2.3 Rights Reserved. Except for the licenses and rights expressly granted herein, no rights or implied licenses of any kind, whether by implication, estoppel, or otherwise, are granted by Bolt Digital to Customer.

  1. OBLIGATIONS OF CUSTOMER.

3.1 Access and Use. Customer is responsible for establishing and maintaining, at its own expense, all equipment and telecommunications services necessary to access the Bolt Intake App®. Customer is solely responsible for Customer Users’ access to and use of the Bolt Intake App® and their compliance with the Agreement. Customer is solely responsible for maintaining the confidentiality of the login credentials for Customer and Customer Users the Bolt Intake App®. Neither Customer nor Customer Users shall: (a) use or permit any others to use or access any part of the Bolt Intake App® or any information contained or stored therein, including any information that may be considered to be Protected Health information (“PHI”) under the Health Insurance Portability and Accountability Act of 1996 and regulations (“HIPPA”), in violation of applicable laws, rules, or regulations of any governmental authority; (b) knowingly send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within any part of the Bolt Intake App®; (c) interfere with or disrupt the integrity or performance of any part of the Bolt Intake App®; or (d) attempt to gain unauthorized access to any part of the Bolt Intake App® or its related systems or networks.

3.2 Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Customer Data, and for obtaining all rights, licenses, consents, authorizations, and approvals necessary for use of the Customer Data in connection with the Bolt Intake App®. Customer assumes full responsibility (a) for the use and transmission of Customer Data through the Bolt Intake App®, and (b) to safeguard against unauthorized access and to provide appropriate protection of Customer Data based on the nature thereof prior to and during the transmission and storage of Customer Data through, on and within the Bolt Intake App®.

  1. PAYMENT TERMS.
    4.1 Payment. In consideration of the license granted to Customer and Services provided by Bolt Digital as specified in the Agreement, Customer will pay Bolt Digital the Fees within five (5) days of the invoice date (“Due Date”). Bolt Digital may increase any of the Fees upon thirty (30) days prior written notice. All Fees are fully earned, non-cancelable and the sums paid are non-refundable. Bolt Digital may charge a late fee on Fees not paid within thirty (30) days after the Due Date at the lesser of the maximum amount chargeable by law or one and one-half percent (1.5%) per month commencing with the Due Date. Customer will be liable for all costs of collection of any past due amounts including, without limitation, all court costs and attorneys’ fees incurred by Bolt Digital.

4.2 Taxes. Customer is liable for any and all sales, use, excise, value added, customs fees, or other similar taxes relating to the Bolt Intake App®, the Services, or the Agreement, except for taxes based on Bolt Digital’s income. If Customer is exempt from the payment of any such taxes, Customer must provide Bolt Digital with a valid tax exemption certificate; otherwise, absent proof of Customer’s direct payment of such taxes to the applicable taxing authority, Bolt Digital will invoice Customer for and Customer will pay to Bolt Digital all such taxes in accordance with the payment terms set forth in this Section 4.

  1. INTELLECTUAL PROPERTY RIGHTS.

5.1 Bolt Digital. Bolt Digital is the sole and exclusive owner of the Bolt Intake App®, and all software, systems, networks, materials, and technology used to develop, incorporated into, or used in the provision of the Bolt Intake App®, together with all modifications to, and derivate works of the Bolt Intake App® (including, without limitation, all customizations and modifications made in the provision any professional services provide to Customer) and all IPR associated therewith.

5.2 Customer Data and Customer Materials. Customer is the sole and exclusive owner of all Customer Data and Customer Materials and all IPR associated therewith.

5.3 Ownership of Feedback. Bolt Digital shall exclusively own any suggestions for improvements or changes, ideas, feedback, error identifications, or other information related to the Bolt Intake App® or the use thereof provided, whether orally or in writing, by Customer or the Customer Users, or otherwise communicated to Bolt Digital in connection with the Services.

  1. CONFIDENTIALITY.

6.1 Confidentiality Obligations. Neither Party shall use or disclose Confidential Information of, or obtained from, the other Party (in any form) to or for the benefit of any Third Party without the disclosing Party’s prior written consent. Each Party shall take all reasonable measures, consistent with those taken to protect its own Confidential Information, and in no event less than commercially reasonable steps or as required by law, to protect the other’s Confidential Information against use or disclosure in violation of the Agreement. All Confidential Information shall remain the property of the disclosing Party and shall be returned upon written request. Each Party will limit the disclosure of the other Party’s Confidential Information to employees, contractors, agents, and representatives with a need to know who have been advised of the proprietary nature thereof and are bound by confidentiality obligations.

6.2 Compelled Disclosure. Neither Party is restricted from disclosing Confidential Information pursuant to any order, subpoena, regulation, or process of law; provided, that the receiving Party (to the extent it is legally permitted) shall give prior notice to the disclosing Party so that the disclosing Party may seek an appropriate protective order or other remedy or waive the provisions of the Agreement, and the receiving Party shall cooperate with the disclosing Party to obtain such protective order. To the fullest extent permitted by law, a Party will continue to protect as confidential and proprietary all information disclosed pursuant to this Section 6.2.

6.3 Survival. The obligations of confidentiality set forth in this Section 6 survive the expiration or any termination of the Agreement as follows: (a) with respect to Confidential Information that constitutes a trade secret, for so long as such information is deemed a trade secret under applicable law; and (b) with respect to all other Confidential Information, the shorter period of five (5) years after the expiration or any termination of the Agreement or until such information no longer qualifies as confidential hereunder.

  1. TERM AND TERMINATION.

7.1 Term. Unless earlier terminated or extended as provided herein, the initial term of the Agreement shall be for a period of one year following the date of the Customer’s execution of its written “BOLT INTAKE APP® Agreement” (the “Initial Term”). Thereafter, the Agreement automatically renews for additional periods of one (1) year each (each a “Renewal Period”), unless either Party provides the other Party with notice of its intent not to renew at least sixty (60) days prior to expiration of the Initial Term or the then-current Renewal Period (as applicable). In the event that Bolt Digital may increase the Monthly License and Services Fee specified in the Agreement for any Renewal Period by giving Customer at least ninety (90) days written notice thereof prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and Renewal Periods are collectively referred to as the “Term.”

7.2 Suspension. Bolt Digital reserves the right, in its sole discretion, to suspend Customer’s or any Customer User’s access to or use of the Bolt Intake App®, or any portion thereof, with or without prior notice (a) in response to any violation or suspected violation of the terms and conditions contained herein, or (b) if Bolt Digital believes that there is a significant threat to the functionality, security, integrity, or availability of the Bolt Intake App®. In the event of a suspension under Section 7.2(b), where the suspension is not due to force majeure or any act or omission by Customer, Bolt shall provide Customer with a credit for such suspension against any Fees owed for the period of suspension.

7.3 Termination for Cause. Without prejudice to any other rights and remedies to which the Parties may be entitled, either Party may terminate the Agreement for cause without liability to the other in the event: (a) the other Party breaches or defaults in performing any material obligation under the Agreement and fails to cure such within (30) calendar days following written notice thereof from the non-breaching Party; or (b) either Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, liquidation, or an assignment for the benefit of creditors (which termination shall be effective immediately).

7.4 Effect of Expiration or Termination. Upon the expiration or termination of the Agreement for any reason (a) the license granted in Section 2 will automatically and immediately cease and Customer and Customer Users will cease all access to and use of the Bolt Intake App®; (b) Customer will pay all Fees incurred as of the expiration or termination date (and in the event that Customer terminates the Agreement prior to the termination of the Initial Term, such Fees will include twelve months of the Monthly License and Basic Services fee specified in the Customer’s written BOLT INTAKE APP® Agreement, even if the payment of the monthly fees was to be deferred until after the implementation and deployment of the Bolt Intake App® and deployment did not take place during the first month of the Initial Term); (c) each Party shall destroy or return all copies of the other Party’s Confidential Information in its possession or control, regardless of the form or medium and including, but not limited to, partial copies thereof, and will certify to the disclosing Party that all copies and portions thereof have been destroyed or returned.

  1. WARRANTIES AND DISCLAIMERS.

8.1 Bolt Digital Warranty. Bolt Digital represents and warrants that it shall perform the Services in a professional and workmanlike manner consistent with generally accepted industry practices. For any breach of this warranty, Customer’s exclusive remedy, and Bolt Digital’s entire liability, will be for Bolt Digital to re-perform of such deficient Services. Customer must identify in a written notice to Bolt Digital any deficiencies in the Services within thirty (30) days of completion thereof in order to receive the above warranty remedy and to refund or credit Customer for any period during which the Bolt Intake App® is not available other than where such unavailability is due to force majeure or periodic maintenance updates of the Bolt Intake App®.

8.2 Customer Warranties. Customer represents and warrants that: (a) Customer shall comply with all applicable laws in accessing and using the Bolt Intake App®; and (b) Customer is authorized to provide Bolt Digital the Customer Materials and that Bolt Digital is authorized to use such Customer Materials solely for the purpose of providing the Bolt Intake App® and Services.

8.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE BOLT INTAKE APP® AND SERVICES ARE PROVIDED BY BOLT DIGITAL ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND BOLT DIGITAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BOLT DIGITAL DOES NOT WARRANT THAT THE BOLT INTAKE APP® OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THE AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY CONTAINED IN THE AGREEMENT.

  1. LIMITATION OF LIABILITY.
    9.1 Damages Cap. Except for damages arising from a Party’s (a) breach of Section 6 (Confidentiality), (b) infringement or misappropriation of the other Party’s IPR in connection with the Agreement, or (c) indemnification obligations hereunder, in no event will either Party’s liability for any damages in any way arising from or relating to the Agreement, regardless of the form of action, exceed in the aggregate the total Monthly Fees actually paid by Customer to Bolt Digital during the twelve (12) months immediately preceding the event giving rise to such claim.

9.2 Exclusion of Damages. Except for damages arising from a Party’s (a) breach of Section 6 (Confidentiality), (b) infringement or misappropriation of the other Party’s IPR in connection with the Agreement, or (c) indemnification obligations hereunder, in no event will either Party be liable to the other or any third party for any indirect, special, incidental, exemplary, or consequential damages, or loss of revenue or business profits, loss of goodwill or reputation, or loss of or damage to records or data in any way arising from or relating to the Agreement, even if such Party has been notified of the possibility or likelihood of such damages occurring, and regardless of the form of action.

  1. INDEMNIFICATION.
    10.1 Infringement. Bolt Digital shall defend, indemnify, and hold Customer harmless from any third party claim alleging that the Bolt Intake App® infringes such third party’s United States patent or registered copyright or registered trademark. Bolt Digital shall have no obligation pursuant to this Section 10.1 to the extent the claim arises from: (a) any modification of the Bolt Intake App® by Customer or any third party other than Bolt Digital; (b) the combination, operation, or use of the Bolt Intake App® with software or data not provided by Bolt Digital if such infringement would have been avoided but for such combination, operation, or use; (c) Bolt Digital’s adherence to Customer’s written specifications or requirements; or (d) use of the Bolt Intake App® in violation of the Agreement. In the event of an infringement claim or if Bolt Digital believes such a claim is likely, Bolt Digital may, in its sole discretion, (i) modify the Bolt Intake App® or substitute a non-infringing version thereof with substantially equivalent functionality, (ii) obtain a license to allow for continued use of the Bolt Intake App®, or (iii) terminate the license and the Agreement in which event Bolt Digital will refund to Customer any unused portion of the prepaid Monthly Fee. The obligations set forth in this Section 10.1 constitute Bolt Digital’s entire liability and Customer’s sole remedy for any actual or alleged infringement of proprietary and intellectual property rights.
    10.2 Bolt Digital’s Additional Obligations. Bolt Digital shall defend, indemnify, and hold Customer harmless from any third party claim or suit, including any liabilities, losses, damages, costs, expenses, and reasonable attorney’s fees incurred in connection therewith, resulting from Bolt Digital’s (a) violation of law applicable to its obligations hereunder, (b) material breach of the Agreement, (c) gross negligence, willful misconduct or intentional wrongdoing; or (d) unauthorized or unlawful disclosure of the Customer Materials.

10.3 Customer’s Obligations. Customer shall defend, indemnify, and hold Bolt Digital harmless from any third party claim or suit, including any liabilities, losses, damages, costs, expenses, and reasonable attorney’s fees incurred in connection therewith, resulting from (a) Customer’s (i) violation of law applicable in connection with its use of the Bolt Intake App®, (ii) material breach of the Agreement, or (ii) grossly negligent or willful acts or omissions; or (b) any Customer Materials unless the claim relates to Bolt’s breach of Section 6.1 with regard thereto.

10.4 Procedures. The defense and indemnification obligations set forth in this Section 10 are conditioned upon (a) the indemnified Party providing the indemnifying Party prompt notice of any claim or cause of action upon which the indemnified Party intends to base a claim of indemnification hereunder, provided that failure to give such notice will alleviate the indemnifying Party from its obligations only to the extent that it is prejudiced thereby; (b) the indemnified Party providing reasonable assistance and cooperation to enable the indemnifying Party to defend the action or claim hereunder; and (c) allowing the indemnifying Party to have sole control of the defense of the claim and all related settlement negotiations.

  1. MISCELLANEOUS.
    11.1 Equitable Relief. A breach of Sections 2.2 or 6 or any violation, infringement, or misappropriation of the other Party’s IPR will result in irreparable injury to the non-breaching Party for which a remedy in damages would be inadequate. Thus, in the event of an actual or threatened breach, the non-breaching Party shall be entitled to seek an injunction to prevent such actual or threatened breach without the necessity of proving damages or posting a bond. Customer and Bolt Digital hereby permanently and irrevocably consent to the exclusive jurisdiction and venue of the Federal, State, and City Courts located in the Counties of Kings or New York, within the State of New York, and hereby waive any objection, including that of forum non conveniens. Nothing herein shall be construed as prohibiting the non-breaching Party from pursuing any other remedy available under the Agreement at law or in equity for such actual or threatened breach. The breaching Party shall give the other Party written notice of any such breach by it or its employees or agents as soon as the breaching Party becomes aware of the breach.
    11.2 Governing Law. The Agreement will be deemed to take place in the State of New York and will be governed by and construed in accordance with the laws of New York excluding its conflicts of law principles.
    11.3 Arbitration. Except as otherwise provided in Section 11.1, all disputes arising under the Agreement shall be finally settled under the Fast Tracked Commercial Rules of Arbitration of the American Arbitration Association by one arbitrator, in accordance to their expedited rules and proceedings then in effect, appointed in accordance with said Rules. The place of the arbitration shall be at a location to be chosen by Bolt Digital (e.g. Bolt Digital offices or the office of the arbitrator or Bolt Digital attorneys) in either New York, New York or Brooklyn, New York. Each Party shall share the costs of the arbitration proceeding with each bearing its own legal expenses and other costs.
    11.4 Independent Contractor. Nothing in the Agreement is intended to create anything other than an independent contractor relationship between the Parties and no partnership, franchise, joint venture, employment or any other form of agency relationship exists or is implied between Customer and Bolt Digital.
    11.5 Assignment. Customer may not assign, delegate, or otherwise transfer the Agreement or any rights or obligations herein without the prior written consent of Bolt Digital and any attempted assignment in contravention of this provision will be null and void and of no force or effect. Bolt Digital may assign, delegate, or otherwise transfer all or a portion of its rights and obligations under the Agreement upon written notice thereof.

11.6 Notices and Service of Process. All notices, requests, service of process, and other communications under the Agreement or in connection with a legal dispute hereunder, must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand or overnight delivery to the Party to whom such notice is required or permitted to be given at the address listed in the Agreement. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand or overnight delivery, any such notice will be considered to have been given when received by the Party to whom notice is given, as evidenced by written and dated receipt of the receiving Party. Either Party may change its mailing address by notice as provided by this Section. Notices shall be sent to the addresses set forth in the Agreement. The Parties hereby waive the requirement that any papers commencing or served in connection with legal proceedings (e.g., injunction actions under Section 11.1 or arbitration proceedings under Section 11.3) be personally served and hereby expressly consent to the service of any such process or papers in the manner set forth herein, provided that a pdf copy of any such papers also be simultaneously sent by e-mail to the e-mail address for Customer listed in the Agreement and to Bolt Digital at legal@bolt.digital.

11.7 Third Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein express or implied will give or be construed to give to any third party any legal or equitable rights hereunder.

11.8 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable with respect to a Party, the remainder of the Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable will not be affected and each remaining provision of the Agreement will be valid and enforceable to the fullest extent permitted by law.

11.9 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under the Agreement will not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor will the waiver of a breach constitute waiver of any subsequent breach.

11.10 Amendments. Except as otherwise permitted herein, no amendments or modifications to the Agreement will be effective unless made in writing and signed by authorized representatives of the Parties. Notwithstanding the foregoing, the Terms may be further amended by Bolt Digital in its sole discretion from time to time, without advanced notice to Customer. Customer’s continued use of the Bolt Intake App®and its failure to object to any material change(s) in the Terms within five (5) business days of having been sent notice of the change(s) by mailing the new Terms to the e-mail address designated by the Customer’s Agreement, shall be deemed to be the Customer’s waiver of any objection to, and an acceptance of, any such change(s) in the Terms.

11.11 Survival. The provisions of the Agreement which by their express language or by their context are intended to survive the expiration or termination of the Agreement will survive.

11.13 Public Relations and Media. Bolt Digital may from time to time issue one or more press releases and/or engage in media activities announcing the Bolt Intake App® and the Parties’ execution of the Agreement. Customer acknowledges and agrees that Bolt Digital may disclose Customer as a user of the Bolt Intake App® to potential users, and may otherwise disclose Customer’s execution of the Agreement and its use of, and access to, the Bolt Intake App®.

11.14 Force Majeure. Neither Party shall be responsible for failure or delay of performance (except for a payment obligation) if caused by any of the following: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated Party.

11.15 Entire Agreement. The Agreement, and these Terms incorporated therein, contain the entire agreement between the Parties as to the subject matter thereof and fully supersedes all prior understandings, written or oral, between the Parties regarding such subject matter.