Updated September 30, 2022
The following document, known as the “Distribution Agreement and Terms of Service,” is a legally binding agreement between you and Boost Collective Inc, a company incorporated in Ontario, Canada. This agreement pertains to your use of our Boost Collective service, which allows you to distribute your musical recordings to specific digital services and stores. Additionally, this agreement covers any other uses of your musical recordings and compositions by Boost Collective and its licensees, as outlined in this document. If you are agreeing to this Agreement on behalf of a group, company, or other entity, you confirm that you have the authority to do so and that you can legally bind them to this Agreement. Boost Collective is able to rely on this representation and all such people and entities will be included in the term “you” for the purposes of this Agreement.
By registering for a Boost Collective account (“Account”), you agree to the following terms and conditions. Therefore, please read and comprehend them thoroughly before proceeding. The Agreement shall come into effect automatically on the day you establish your Account, which is referred to as the “Effective Date.”
BOOST COLLECTIVE DOES NOT CLAIM ANY COPYRIGHT OR OTHER OWNERSHIP RIGHTS OVER YOUR MUSIC. WE ONLY OBTAIN A LIMITED LICENSE TO DISTRIBUTE IT.
PLEASE UNDERSTAND THAT YOU MUST OWN OR OTHERWISE HAVE THE LEGAL RIGHT TO REPRODUCE AND DISTRIBUTE 100% OF THE RECORDINGS, MUSICAL COMPOSITIONS, LITERARY WORKS, DRAMATIC WORKS, SPOKEN WORD CONTENT, ARTWORK AND ANY OTHER MATERIAL THAT YOU INTEND TO UPLOAD AND DISTRIBUTE VIA THE BOOST COLLECTIVE SERVICE, INCLUDING THE RIGHT TO MAKE AND DISTRIBUTE DIGITAL DOWNLOADS EMBODYING THE MUSICAL COMPOSITIONS THEREIN, AND ELECTRONIC TRANSMISSIONS OF SUCH MUSICAL COMPOSITIONS (INCLUDING, WITHOUT LIMITATION, VIA STREAMING SERVICES), AS NECESSARY.
FOR EXAMPLE, WE CANNOT ACCEPT ANY REMIXES OR RECORDINGS THAT CONTAIN SAMPLES UNLESS YOU HAVE OBTAINED WRITTEN PERMISSION FROM THE SONGWRITERS AND OWNERS OF THE ORIGINAL RECORDINGS. UNTIL BOOST COLLECTIVE RECEIVES NOTICE THAT THE APPROPRIATE LICENSES HAVE BEEN CLEARED, YOUR RECORDINGS OF COVER VERSIONS WILL NOT BE AVAILABLE IN ANY DIGITAL STORE.
- THE BOOST COLLECTIVE SERVICE AND YOUR RECORDINGS
- The Boost Collective Service allows you to upload digital files containing audio-only musical sound recordings or audio-visual works and the underlying musical compositions, literary works, dramatic works or spoken word content embodied therein (“Recordings”) to our servers. These Recordings can be distributed to digital stores, streaming services, and other digital services within our distribution network (“Digital Stores”). These Digital Stores may make your Recordings available to their customers and end users (“Customers”). The term “Compositions” as used in this context refers to the musical compositions, literary works, dramatic works, or spoken word content that are included in the Recordings.
- Recordings must be musical sound recordings that are either in a single track, EP, or album configuration. However, it is important to note that Digital Stores will allow customers to purchase or stream your recordings as individual tracks. This means that you cannot require customers to purchase or stream an entire album or EP as a single unit. It is not our usual practise to receive or share ringtones, audio books, spoken-word records, digital booklets, or other similar content. However, we reserve the right to consider such formats on a case-by-case basis at our discretion. If we decide to accept them, the terms of this Agreement will apply.
- WAV files in the recording format are presently acceptable. Boost Collective may request various formats or file sizes during the Term, and we or the Digital Stores may also require them. Boost Collective has the right to convert the audio files of the Recordings as needed.
- When you upload each recording, it is mandatory to provide us with all the necessary data that we or a digital store may require. This includes the artist name, album title, each track title, genre, and any available cover art. (in JPG format with RGB color or any other format that we or a Digital Store may require). As per the terms of this Agreement, any data, metadata, information, image files, artwork, or other materials that you provide to us will be considered as “Recordings.” It is necessary for you to specify whether the Recording includes explicit content. If this is the case, a Digital Store can label it accordingly.
- We will generate unique identifying codes for each Recording and provide them to your chosen Digital Stores. Alternatively, you can choose to specify your own UPC or ISRC codes.
- Once a user uploads a recording to our website, they may request to remove it at any time during the term by visiting www.boost-collective.com/takedown-request or through the ‘Release’ tab within their Boost Collective account. A fee may be necessary for the removal of your Recording from our Site. We retain the authority to modify or eliminate this charge at any moment at our discretion.
- DIGITAL STORES
- The rights granted by you to Boost Collective are non-exclusive. Please note that sending your Recording(s) to the same Digital Stores through both Boost Collective and another service may result in double listing of your Recordings, which could lead to complications and/or problems in those Digital Stores.
- We commit to delivering your Recordings to Digital Stores in a timely manner. The integration, processing, and availability of your Recordings to Customers in a Digital Store may take several weeks, a few days, or a few hours, depending on the specific Digital Store and territory. Kindly exercise patience.
- Each Digital Store has the right to decide the pricing, format or media, and other terms on which it offers recordings, including your recordings, to its customers based on its business model. In certain situations, your Recordings may be offered for permanent digital download at a cost per unit. Alternatively, Customers may pay a monthly subscription fee to access your Recordings, as well as other recordings, for streaming or temporary download. As an additional example, Digital Stores have the right to offer your Recordings for free on a promotional basis, either alone or with other recordings. They may also choose to include or exclude your Recordings in marketing promotions, create editorial content about your Recordings and the featured artists, group Recordings by genre or other designation, and allow Customers and others to listen to free preview clips of your Recordings, all at their discretion. Your Recordings will be distributed to Digital Stores worldwide, unless you specify otherwise during the upload process.(s).
- It is possible that Digital Stores may decide not to distribute one or more of your recordings in certain regions or altogether, or they may choose to remove your recordings at any time, according to their policies and procedures. Please note that we have no control over this decision. We reserve the right to refuse to distribute or remove one or more recordings from digital stores if we receive any legal claims related to the recordings, if we anticipate potential legal issues, if a recording violates the terms and conditions of any digital store, or for any other reason based on our business judgment. In the event that our agreement with a Digital Store ends or is terminated, or if the Digital Store stops operating completely or in a specific region, your Recordings will no longer be accessible through that Digital Store. The “Territory” of this Agreement is the universe, except where noted with respect to certain territories outside of Canada.
- By choosing to participate in a Digital Store, you confirm to Boost Collective that you have carefully read, comprehended, and consented to abide by all the terms and conditions of that Digital Store. Additionally, you assure that both you and your Recordings and other content will adhere to those terms and conditions in their entirety.
- YOUR ACCOUNT
Upon registration for our Service, you will create a username and password that will enable you to access an online user dashboard for your account on our website, which is currently located at www.boost-collective.com (referred to as our “Site”). It is your responsibility to keep your username and password secure. You will be solely responsible for any content uploaded, financial transactions, and other activity conducted through your account. We shall not be held liable for any transactions carried out through your account.
- GRANT OF RIGHTS
- In order for us to provide the Service and to distribute your Recordings (which, solely for purposes of clarity, and as a reminder to you, includes the Compositions) and related content to your selected Digital Stores via our Service and/or on Boost Collective’s sites/services or digital platforms, including, without limitation, our lawyers and the Digital Stores need us to confirm that you grant us the non-exclusive, sub-licensable right and license during the Term and throughout the Territory to:
- reproduce and distribute your Recordings, to Digital Stores for them to sell or sublicense to their Customers by any and all applicable digital (non-physical) formats, configurations, technologies and methods (including, without limitation, permanent downloads, temporary or “tethered” download, interactive and non-interactive streaming, “scan and match” services, “cloud” services, digital jukeboxes, digital and online/wireless karaoke services, business establish background services, home exercise background and audiovisual services, and other audiovisual services) to any and all capable devices (including, without limitation, to personal and tablet computers and smartphones), in each case as now or hereafter known. You acknowledge that the rights granted to Boost Collective include the right to synchronize your Recordings with visual images and to perform and reproduce them as necessary for the operation of Digital Stores.
- create, reproduce, publicly perform and make available, and to authorize Digital Stores to reproduce, create and publicly perform and make available, free preview clips of your Recordings via streaming format either on Boost Collective Sites or via the Digital Stores;
- authorize third-party partners and/or licensees to create and exploit remixes and user-generated content of your Recordings on UGC Services such as YouTube, Facebook, and Instagram. You agree that Boost Collective has the right to grant UGC Services the related rights, without any limitations, as follows: You agree to allow synchronization of your Recordings (which includes the Compositions) with visual images and/or combining excerpts of your Recordings with any series of still or moving images, either pre-capture, post-capture or as a live stream. You also authorize others to do the same. (2) You give permission for your Recordings and/or remixes of your Recordings to be used and included in “Mix Content,” which refers to the combination of two or more audio-only tracks that may be mixed, remixed, edited, or mashed up in a harmonious, rhythmic, or other manner. (3) You allow your Recordings to be stored, hosted, reformatted, streamed on-demand, conditionally downloaded, and displayed in user videos, “art tracks,” audio-only tracks (including remixes), label videos, and Mix Content. You also permit your Recordings to be made available on and through the UGC Services, including embedded YouTube video players. The user grants permission for their Recordings to be reproduced, distributed, and modified (including synchronization and remix rights) as needed for the aforementioned activities. The user also allows for the collection of all income generated from these activities, the creation of reference files and fingerprints of the Recordings, and the storage and use of such files. Grant the UGC Services the necessary rights to include the Recordings in Google’s “AudioSwap Library” (or any successor product owned or controlled by Google) and similar libraries of the UGC Services. These libraries consist of master recordings that users may add to their user videos and/or Mix Content, as applicable. Additionally, display album artwork in association with videos and audio-only tracks created in connection with the UGC Services. The rights will also be passed through to users as applicable. The UGC Services shall possess the authority to (and may transfer such authority to labels and users as appropriate): Using your recordings, you can (AA) produce so-called “art tracks” (BB) make reference files and fingerprints of your recordings (CC) and use them in Facebook features like musical emojis and stickers, video remixes, send-a-lyric, virtual reality experiences, and sing-along with lyrics. The term “UGC Services” refers to all versions of the website, including mobile and international versions, as well as any features accessible through apps or other devices that allow users to access videos and audio tracks on the UGC Services website. This includes embeds and playback pages, even if accessed through means other than the website itself.
- display and/or otherwise use your artist(s) and/or label name and logo (if you have one), as well as all artwork, song and album titles, all trademarks, service marks, logos, and trade names, as well as all artist, songwriter, producer, and mixer names and approved likenesses, each as embodied in metadata within the Recordings or otherwise provided by you (“Materials”), on Boost Collective Sites, on the Digital Stores’ sites and Without limiting the aforementioned, the Digital Stores may develop editorial content about you and your Recordings and may classify or categorize the same for inclusion within one or more genres, but they are under no duty to;
- collect money from the Digital Stores for using your recordings (and to do so for the purpose of doing so in the future from the use of your recordings throughout the Term); and
- notify Digital Stores and other third parties of our rights and relationship per this Agreement, and to include your name and logo (if you have one) in any listing of Boost Collective licensors.
- You also grant us and your chosen Digital Stores the right and license during the Term and throughout the Territory to take all steps desired or required to effect the foregoing rights and to distribute your Recordings and Materials as contemplated by this Agreement, including, without limitation, to store, host, cache, reproduce, convert, edit, serve, transmit, and publicly perform such Recordings, and as otherwise required pursuant to our agreements with those Digital Stores. You acknowledge that Digital Stores may grant Customers even perpetual rights to use your Recordings beyond the Term of this Agreement. As stated previously, Digital Stores and/or we may, in our reasonable business judgment, decline to disseminate or otherwise exploit any Recordings or other Materials (or remove Recordings that have already been distributed or supplied to Customers). You are deemed to have approved any artwork, photographs, biographical material, or other information or materials you provide to us.
- YOUR RESPONSIBILITIES
- You are solely responsible for and must have obtained all necessary rights, licenses, waivers, clearances and permissions, including without limitation all music publishing rights and licenses in order to distribute, reproduce, display, publicly perform, synchronize with audiovisual works or otherwise exploit the Compositions (including the lyrics of such Compositions), throughout the Territory for all Recordings and other Materials in order to enable Boost Collective and your selected Digital Stores to fully exploit all their rights hereunder free of any claims, liens, encumbrances or other restrictions. By uploading Recordings and providing any other Materials, you confirm and guarantee to us that you have acquired all necessary rights for Boost Collective and your chosen Digital Stores to sell, distribute, publicly perform, promote, and exploit such Recordings and Materials as outlined in this Agreement. This includes waiving any “moral rights” under the laws of any jurisdiction on your behalf and on behalf of any contributors involved in creating and delivering your Recordings.
- Without limiting anything in this Agreement, you are solely responsible for and shall timely pay (i) any and all royalties, including without limitation all mechanical royalties and synchronization fees, and all other amounts due to artists, producers, mixers, engineers, licensors and any other royalty participants from the sales, license, performance and/or other exploitation of your Recordings and Materials, (ii) any and all royalties, including without limitation all mechanical royalties and synchronization fees, that may be payable by you to the owners or administrators of copyrighted recordings (e.g., samples) and/or musical compositions embodied in your Recordings, (iii) all payments that may be required under union, guild or other collective bargaining agreements applicable to you or third parties, and (iv) any other royalties (including without limitation mechanical royalties), fees and/or sums payable with respect to the Recordings or Materials, including, without limitation, any royalties that may be required to be paid, pursuant to the applicable laws of any jurisdiction, as a result of authorized exploitations by Boost Collective or your selected Digital Stores of your Recordings (including, for purposes of clarity, the Compositions) for so-called performer’s rights, equitable remuneration rights or neighboring rights, however characterized under local law. In case any part of your Recordings is currently or will be managed by any PRO in any territory, you must inform such third-party PRO(s) about this Agreement. You acknowledge that Boost Collective will not make any payments on your behalf. WE DO NOT AND CANNOT PROVIDE YOU WITH LEGAL ADVICE REGARDING YOUR OBLIGATIONS TO THIRD PARTIES.
- PAYMENT & ACCOUNTING TERMS
- In full consideration of the rights and licenses granted hereunder, we will post to your Boost Collective account 100% of all monies that we receive from your selected Digital Stores which are directly attributable to their exploitation of your Recordings, after deducting (i) any applicable PayPal fees or other payment processing fees and (ii) may include but is not limited to taxes, administration fees or other third-party fees. If your recordings are eligible for the Content ID service, we may use YouTube’s Content ID service and other methods to detect videos that contain your recordings. If we detect any such videos, we will deduct 20% from the monies paid to us that are attributable to those videos. Boost Collective will have the sole discretion to decide whether to pay any portion of the lump-sum payment received from a digital store that cannot be attributed to any particular artist account(s) or specific recordings from any particular artist account(s). Without limiting the immediately preceding sentence, Boost Collective may determine to distribute such monies (i) on a pro-rata basis based on the number of artists with whom Boost Collective has distribution agreements; (ii) in its discretion among artists based on a historical earnings and/or proxy formula determined solely by Boost Collective; or (iii) based upon the amount the Digital Store actually credits Boost Collective for your Recordings subsequent to the payment to Boost Collective. Upon receipt of payment, you may submit an invoice for payment using your preferred payment method. You shall bear the responsibility for any bank fees or other charges associated with such withdrawals. Foreign currency sums will be converted to US Dollars at either the same rate received by us or the current spot exchange rate at the time of the transaction from store to Boost Collective or from Boost Collective to you. To clarify, your payment is a comprehensive pay-through payment, and you are solely accountable for paying and reporting all relevant taxes, tariffs, licensors, songwriters, publishers, artists, producers, mixers, and other third parties. We are unable to provide any legal, tax, accounting, or other advice. Kindly seek guidance from your own advisors concerning those issues.
- You understand and acknowledge that the percentage of monies posted to your Boost Collective account may vary. Boost Collective reserves the right to alter the percentage of monies posted to your account at any time.
- You acknowledge and agree that Digital Stores have the right to keep a portion of the income received from customers and may deduct or withhold amounts from the payment made to Boost Collective. Digital Stores may retain or withhold sums that include taxes, tariffs, administration fees, royalties or fees paid to third parties, wire transfer fees, and credit card processing fees and chargebacks. Boost Collective shall be entitled to rely on payments and accountings received from Digital Stores. Any objection relating to any accounting statement or any lawsuit arising therefrom must be made (and/or lawsuit commenced) no later than six (6) months after the date the statement is rendered, and you waive any longer statute of limitation that may be permitted by law. You shall have no right to inspect or audit our books and records, or those of Digital Stores.
- Boost Collective makes payments via PayPal and various other methods and may deduct fees incurred by Boost Collective in remitting payment. If you do not use PayPal, it is necessary to obtain approval from Boost Collective for all other payment methods before receiving payment from Boost Collective. Ensuring the functionality of your payment method is your responsibility. We reserve the right to modify or include supplementary payment methods during the Term. Boost Collective requires an active email account from you to communicate important notices. It is your responsibility to ensure that the email account is active, can receive emails from Boost Collective, and that your email address on file with Boost Collective is current.
- After we receive a payment for you from a Digital Store, we will notify you via email. It takes approximately three months from the date of your Recording’s release through the Boost Collective platform to receive a royalty statement from us. You must then affirmatively accept and send us an invoice obtainable via your Boost Collective account in order for us to transmit the royalties to you. We will also make available to you via your user dashboard a portion of accounting statements that we receive from your selected Digital Stores for the applicable period. We reserve the right to remove any statements that contain confidential information or information pertaining to third parties. If your account is managed on behalf of a group, company, partnership, or any entity other than yourself, then you are responsible for paying any other parties. Payments will be made solely to the account holder.
- Boost Collective has the right to decide, at its own discretion, whether your Recording(s) meet certain streaming and/or sales metric qualifications. If they do, Boost Collective may offer you the option to receive an advance payment of royalties, minus a processing fee that will be a specified percentage of each advance payment. This offer may be made from time to time throughout the Term, and the amount of the Accelerated Payment, including the processing fee, will be determined solely by Boost Collective.
- If required by applicable law, we may withhold payments to you, in whole or in part, pending receipt of your correctly completed Form W-9 (if you are a US resident for tax purposes), Form W-8 (if you are a non-US resident for tax purposes), updated [annually / at our request], or any other applicable tax-related forms evidencing that no withholding is required. In case the information provided on tax forms is inaccurate, incomplete or misrepresented, we have the right to hold back the amounts owed to you until we receive the appropriate and accurate information that relieves withholding. We retain the right to hold back any amounts owed to you if, in accordance with applicable laws, we are required to do so based on accurate and timely information that has been submitted to us. By using our services, you acknowledge and accept that you are solely responsible for providing accurate and truthful tax and financial information. In the event that any incorrect, inaccurate, or misrepresented information is provided by you, you agree to indemnify us and be responsible for any costs, expenses, and liabilities that we may incur as a result.
- If we receive a claim or notice or otherwise reasonably suspect that any of your Recordings or Materials or your use of our Site or Service breaches any agreement, infringes any third party rights, violates this Agreement or any law, rule or regulation, that there is a dispute regarding the Recordings or Materials (including without limitation as to ownership or payment of monies), or that your activities involve misrepresentation, misconduct, deception, fraud, or other inappropriate conduct, then in addition to any other available rights and remedies, we may suspend or terminate the distribution of your Recordings and/or the Term of this Agreement and/or withhold payment of monies to you in an amount reasonably attributable in our discretion to such Recording(s), Material and activity until and unless any and all claims or other conduct are favorably resolved to our reasonable satisfaction, and we may deduct from your payments our related attorneys’ fees and legal costs in connection. You will forfeit any monies that are attributable to your fraud, infringement or other illegal activity.
- REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
- By agreeing to this Agreement, you confirm and guarantee to Boost Collective that you are at least 18 years old and possess the legal capacity, entitlement, and authorization to enter into this Agreement. You confirm that you have the required copyrights and other rights to grant the rights, licenses, and permissions mentioned here. You also confirm that Boost Collective, the selected Digital Stores, and their respective successors and assigns can exercise these rights without violating any laws or infringing any third-party rights. (iii) You confirm that you have obtained all necessary grants of rights, consents, licenses, and permissions from third parties, including but not limited to mechanical, synchronization, and any other licenses from copyright owners or proprietors, to fulfill all obligations under this Agreement. You agree to make all payments and comply with all obligations under this Agreement. You confirm that your Recordings and Materials, which include all visual content in your audio-visual Recordings, do not and will not infringe any copyright, trademark, or other intellectual property or rights of any third party. Additionally, the authorized use of your Recordings and Materials by Boost Collective, Digital Stores, and their Customers will not violate any applicable laws or regulations, including rights of publicity, privacy, or moral rights. You confirm that the files you upload or provide to us do not have any harmful elements such as bugs, viruses, trojan horses, or digital rights management restrictions. Additionally, you state that there are no current or potential legal claims, administrative proceedings, or other actions that could prevent us from fully using the rights and licenses granted in this agreement. The user agrees that all data, metadata, and information provided in connection with this Agreement are accurate, complete, and true. The user also agrees to update the information promptly if necessary during the Term. (viii) You agree to make all payments specified in paragraph 7.a above in connection with the Recordings and Materials. Boost Collective will not be responsible for any other payments. (ix) You agree to use the Site and Service only in accordance with this Agreement and not for any fraudulent, infringing, or inappropriate purposes. (x) Any sale, assignment, transfer, mortgage, or other grant of rights in or to your interest in any of the Recordings or Materials shall be subject to our rights hereunder and the terms and conditions hereof. (xi) there is no existing agreement, and you will not enter into any agreement or perform any act, which materially interferes or is inconsistent with the rights granted to us hereunder; (xii) you covenant and agree not make any claim or bring any legal action related to this Agreement, against any Digital Store or UGC Service so long as such entities are not in violation of the rights you have granted to Boost Collective hereunder; and (xiii) you have read and understand this Agreement and have had the opportunity to consult with independent legal counsel in connection with them.
- You shall indemnify and hold harmless, and upon our request, defend, Boost Collective and our affiliates, sublicensees (including your selected Digital Stores and their Customers), successors and assigns, and the respective directors, officers, shareholders, members, managers, employees, agents and representatives of the foregoing, from and against any and all claims, suits, proceedings, disputes, controversies, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) resulting from: (i) a breach or alleged breach of any of your warranties, representations, covenants or obligations under this Agreement; (ii) any claim that the Recordings, Materials, data or information provided or authorized by you or on your behalf hereunder or the use thereof by Boost Collective, a Digital Store, or an ID Service (if applicable) violates or infringes the rights of another party; or (iii) any other act or omission by you or any of your licensors, agents or representatives. Upon request, you agree to promptly compensate Boost Collective and any other parties entitled to indemnification for any amounts that require indemnification. We shall notify you of any such claim and shall control the defense thereof, though you may participate in such defense at your own expense. You may not settle any claim for which we may be liable without our prior written consent, which we will not withhold unreasonably. If any facts, claims, proceedings or other circumstances arise that would be subject to indemnification, then Boost Collective, in addition to any other right or remedy, shall have the right to withhold from any payments otherwise due to you an amount reasonably related thereto until the claim, proceeding or circumstance has been finally resolved, settled or fully adjudicated and the judgment satisfied, or that the statute of limitations on such claim has run, or when you have provided reasonable and adequate security for the claim. Boost Collective has the authority to charge you or deduct from your payable monies for any legal fees that may arise due to your violation of this Agreement.
- NO WARRANTIES; LIMITATION OF LIABILITY
- The site and service are provided to you in its current state without any warranties or guarantees. Boost Collective does not provide any guarantees, representations, or warranties, whether express or implied, statutory or otherwise, including but not limited to the amount of income that may be earned by or payable to you, or the condition, quality, continuity of operation, performance, merchantability, or fitness for a particular purpose of our site or service. We cannot assure uninterrupted, error-free, secure access to or use of the Site or Service. All warranties are disclaimed and excluded.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER BOOST COLLECTIVE NOR ANY OF ITS AFFILIATES, EMPLOYEES, OWNERS, EMPLOYEES, REPRESENTATIVES OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOST SALES, LOSS OF DATA OR LOSS OF GOODWILL, FOR ANY ACTS OR OMISSIONS OF DIGITAL STORES OR THEIR CUSTOMERS, ID SERVICES, OR FOR YOUR USE OF OR ACCESS TO THE SITE OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL BOOST COLLECTIVE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUMS ACTUALLY DUE TO YOU IN ACCORDANCE WITH PARAGRAPH 7.a ABOVE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN BOOST COLLECTIVE AND YOU.
- A party’s waiver of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement. If any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, such determination shall not affect any other provision hereof, and the unenforceable provision shall be limited solely as necessary or replaced by an enforceable provision that most closely meets the commercial intent of the parties.
- Boost Collective will not be liable for a curable breach of this Agreement unless you provide us with written notice specifying the alleged breach that we confirm receipt of, and we fail to cure such breach within ninety (90) days thereafter.
- We may direct all notices and communications to you via the email address or street address associated with your account and/or via your dashboard account on the Site. Please send all notices to Boost Collective to the email address [email protected].
- You are not allowed to assign, transfer or delegate any of your rights or obligations mentioned in this agreement without our prior written consent. Any attempt to do so without our consent will be considered null and void from the beginning. We may assign, delegate, pledge, encumber, sublicense and otherwise transfer, this Agreement and/or any or all of our rights and obligations in order to operate the Service and Site. This Agreement will be binding on and inure to the benefit of the parties and their respective assigns and successors in interest.
- We retain the right to alter, end, or terminate the Service without advance notice at any time. We reserve the right to discontinue or suspend the Service at any time, without any obligation to provide it continuously or at all.
- The relationship between the parties is that of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other’s agent, partner, employee, or representative.
- This Agreement shall be construed and enforced exclusively in accordance with the laws of the province of Ontario, without regard to its conflict of laws principles. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a provincial or federal court of competent jurisdiction located in Ontario, and the parties irrevocably consent to the in personam jurisdiction and venue of said courts. You agree that service of process by us to you by one of the methods designated above for the giving of notices will be deemed effective as personal service within Ontario, and hereby consent to service of process by such methods.