Booster OS Terms of Service​​​​

Welcome to Booster OS. Please read these Terms of Service carefully because they govern your use of our products and services. The Customer, together with Booster OS Inc., are referred to as the “Parties”.

Definitions
1.1 “Account” means the accounts Customer creates to access the Hosted Software and Apps.

1.2 “Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with, the Customer.

1.3 “Apps” means software applications for smartphones and tablets distributed by Booster OS through Google Play or through the Apple App Store and used to provide the Products.

1.4 “Authorized User” means Customer’s employees, Affiliates, and/or contractors whom Customer authorizes to use the licensed Booster OS Software strictly on its behalf.

1.5 “Customer” or “you” means the company or legal entity for which you are accepting these Terms and its Affiliates who enter into Order Forms (for each such Affiliate, solely with respect to Order Forms entered into by it and for so long as it remains a Customer Affiliate).

1.6 “Customer Data” means Customer-specific data captured by Customer’s use of any installed Hardware, data submitted by, or on behalf of Customer (including from or through Non-Booster OS Products) into Apps and Hosted Software, and the analysis, reports, and alerts generated by the Products containing such data. For the avoidance of doubt, Customer Data does not include any Booster OS Software.

1.7 “Documentation” means any Product training, technical services, or documentation made available to Customer through the Booster OS website or otherwise made available to Customer by Booster OS.

1.8 “Equipment” means any vehicle or equipment into which Hardware is installed, and for which Customer represents and warrants it has all necessary rights and authority to permit such installation.

1.9 “Firmware” means software embedded in or otherwise running on the Booster OS tanker Hardware.

1.10 “Hardware” means the hardware devices such as gateways and accessories, and any improvements, developments, modifications, patches, updates, and upgrades thereto that Booster OS develops or provides.

1.11 “Hosted Software” means Booster OS ‘s cloud-hosted software platform, including the interface accessed online.

1.14 “License Expiration Date” means the later of (i) the original license termination date set forth in the applicable Order Form you entered into for the original purchase of Products or under which Products were originally made available to you (“Initial Term”), and (ii) the end of the then-active Renewal Term (as defined below);

1.15 “License Start Date” means (i) the day Booster OS enables access to the Hosted Software; or (ii) notwithstanding the foregoing, if Customer is renewing the license term for a previously-activated Booster OS Software license, the day that Booster OS extends Customer’s access to the Hosted Software for the renewal license term.

1.16 “Malicious Code” means code, files, scripts, agents, software or programs intended to do harm or allow for unauthorized access, including, for example, viruses, worms, time bombs, and Trojan horses.

1.17 “Non-Booster OS Products” means any web-based, offline, or mobile applications, or other resources, users, data, systems, networks, products, services, Equipment, hardware, or software functionality that is provided by Customer or a third party and that interoperates, integrates, and/or exchanges data with the Products.

1.18 “Order Form” means the applicable Quote or Purchase Order setting forth the purchase or procurement of Booster OS Products and/or licenses thereto. By entering into an Order Form hereunder, a Customer agrees to be bound by these Terms.

1.20 “Products” means Hardware and Services. For the avoidance of doubt, Products do not include any Non-Booster OS Products.

1.21 “Professional Services” means the training, consulting, or other professional services including but not limited to installation services that are provided by Booster OS to Customer (i) as purchased separately by Customer pursuant to an Order Form, (ii) in Booster OS ’s sole discretion, or (iii) as otherwise mutually agreed between the Parties.

1.22 “Purchase Order” means a purchase order or similar ordering document issued by Customer to Booster OS and accepted by Booster OS setting forth the purchase or procurement of Booster OS Products and/or licenses thereto.

1.23 “Quote” means a quote issued by Booster OS and executed by the Customer setting forth the purchase or procurement of Booster OS Products and/or licenses thereto.

1.25 “Renewal Term” means any renewal license term of the applicable Products after the Initial Term. If Customer’s license term is renewed a period of time after termination of the immediately preceding license term and Booster OS in its sole discretion allows Customer to continue using the applicable Products during such interim period, these Terms shall apply to such use.

1.26 “Booster OS Software” means the Apps, Firmware, and Hosted Software, and any improvements, developments, modifications, patches, updates, and upgrades thereto that Booster OS develops or provides, and Support Services.

1.28 “Services” means the Booster OS Software , Service Usage Data, and Professional Services.

1.29 “Service Usage Data” means any data that is derived from the use of the Products except that to the extent such data could directly or indirectly identify a natural person it shall be anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify such natural person.

1.30 “Support Services” means the customer support services available training and product documentation, but excluding any Professional Services.

1.31 “Terms” means these Terms of Service, together with any amendments or addenda that modify these Terms of Service.

2. Agreement to Terms. By clicking a box indicating your acceptance of these Terms, by executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with Booster OS for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earlier, you accept and agree to be bound by these Terms. If you do not agree to these Terms or you are not authorized to access and/or use the Products, you shall not access or use the Products. If you are accessing and/or using the Products on behalf of a company (such as your employer) or other legal entity that is our Customer, you agree to these Terms on behalf of such company or other legal entity, and you represent and warrant that you have the authority to bind such company or other legal entity to these Terms. References to “you” and “your” in these Terms refer to that company or other legal entity, our Customer. You may not use the Products if you are our competitor, as determined in our sole discretion, except with our prior written consent.

3. Changes to Terms or Services. Booster OS may modify the Terms at any time, at our sole discretion. If Booster OS does so, Booster OS will inform you by posting the modified Terms to the Services or our website or through other communications with you, our Customer. It is important that you review the Terms whenever Booster OS modifies them because if you continue to use the Products after Booster OS has posted or otherwise informed you of the modified Terms, you are indicating to Booster OS that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not continue to use the Products.

4. License. Customer’s compliance with these Terms, timely payment of all fees, and subject to the terms and conditions specified in these Terms or an applicable Order Form, Booster OS grants Customer a non-sublicensable, non-exclusive, non-transferable, limited and revocable license to use and access the Booster OS Software (i) in accordance with the Documentation, (ii) for the number and type of Booster OS Software licenses specified in the applicable Order Form and solely the functionality included therein, and (iii) starting from the applicable License Start Date until the License Expiration Date set forth in such Order Form or the earlier termination of such Order Form or these Terms. For clarity, the license for Booster OS Software that is provided in conjunction with a Hardware unit is only valid for use with that Hardware unit. Booster OS reserves the right to audit Customer’s usage of Booster OS Software and to remove Customer’s access to Booster OS Software beyond the licensed scope (“Licensed Scope”) (for example, the licensed feature scope or licensed user count, as applicable) at any time. If Customer would like to use Booster OS Software beyond the Licensed Scope, Customer is required to purchase the applicable Booster OS Software licenses and if applicable install the applicable Hardware that include such scope. If Booster OS becomes aware that Customer is using Booster OS Software beyond the Licensed Scope, Booster OS reserves the right to charge Customer for the applicable Booster OS Software licenses that include such Licensed Scope at the then-current list price, and Customer agrees to immediately pay such amounts.

5. License Restrictions. Customer agrees not to do or attempt to do any of the following without Booster OS ’s express prior written consent: (i) resell, white label, or reproduce the Products or any individual element within the Product, Booster OS ’s name, any Booster OS trademark, logo or other proprietary information, or the layout and design of any part of the Product; (ii) access, tamper with, or use non-public areas of the Booster OS Software Systems; (iii) gain unauthorized access to, interfere with, disable, or disrupt the integrity or security of the Booster OS Software Systems; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Booster OS Software Systems or enforce a contractual usage limit; (v) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the Booster OS Software or Hardware to any third party; (vi) decipher, decompile, disassemble or reverse engineer any aspect of the Products, in whole or in part; (vii) impersonate or misrepresent an affiliation with any person or entity; (viii) use or access the Products for any competitive purpose;, including but not limited to analyzing, benchmarking, or reverse engineering the Products for the purpose of creating competing products or services (ix) perform benchmark testing on the Products; (x) use the Products to store or transmit Malicious Code; (xi) violate any applicable law or regulation; (xiii) authorize, permit, encourage, or enable any other individual or entity to do any of the foregoing. Booster OS has the right to investigate violations of this Section or conduct that affects the Booster OS Software Systems and immediately suspend or terminate any or all of Customer’s access to the Booster OS Software if it reasonably suspects or determines that Customer has violated this Section. Customer agrees to indemnify, defend, and hold harmless Booster OS from and against all claims, actions, demands, and legal proceedings, and all liabilities, damages, demands, losses, claims, costs, fees (including legal fees), and expenses in connection with a violation of this Section 5 and any investigation related thereto. Booster OS may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

6. Hardware Installation and Equipment Maintenance. If an Order Form indicates that Customer will receive any hardware (“Hardware”), Booster will use commercially reasonable efforts to promptly make that Hardware available to Customer. All Hardware is loaned, not sold, to Customer, and will remain the property of Booster. Customer will use a reasonable degree of care to maintain and protect all Hardware. Customer will assume all risk of loss, damage, theft, or destruction of all Hardware while in its possession or control or that of its agents, including any carrier, and will promptly reimburse Booster for any costs of repair or replacement at Booster’s then-current standard replacement rates, regardless of cause or fault.. Customer will, at all times, keep all Hardware in its control (whether by contract or possession). Any Hardware provided to Customer is solely for use by Customer in connection with the Products.
Customer is solely responsible for proper installation of the Hardware. And bears all risk associated with improper installation. Customer acknowledges that professional installation may be required depending on the intended use of the Products. Booster OS makes no warranties regarding Customer-performed installations.. If Customer is unable to install the Hardware, Customer agrees to consult with a qualified installer or maintenance professional or procure professional installation services from Booster. Improper installation of the Hardware or maintenance of the Equipment can lead to damage of such Equipment or can cause property damage. Customer may notify Booster OS if Customer did not order the correct Hardware cables for Hardware installation.

7. Product Updates.
7.1 General. Booster OS continuously improves the Products, and may from time to time (i) update the Booster OS Software and cause Firmware updates to be automatically installed onto Hardware; (ii) update the Apps; or (iii) upgrade Hardware to newer models. Booster OS may change or discontinue all or any part of the Products, including changing, discontinuing, or removing features included in a Booster OS Software license, at any time and without notice, at Booster OS ’s sole discretion. If Booster OS discontinues supporting a Hardware model and the associated Booster OS Software license that you have ordered from Booster OS in accordance with these Terms prior to the applicable License Expiration Date without offering to replace them with an updated or comparable version or model, either Party may terminate the applicable Order Form with respect to the applicable Products, and if so terminated you may request a pro-rated refund for the unused portion of any pre-paid fees specifically relating to such discontinued Products. Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.

7.2 Feedback. If Customer provides any feedback to Booster concerning the functionality and performance of a Product, any Documentation, or the Professional Services (including identifying potential errors and improvements), Customer hereby assigns to Booster all right, title, and interest in and to the feedback, and Booster is free to use the feedback without payment or restriction.

8. Fees and Payment.
8.1. Fees and Payment Terms. Customer will pay Booster the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form (i) Customer will pay all amounts due within 10 days of the date of the applicable invoice. Unless otherwise set forth in the applicable Order Form, (ii) fees are payable by wire transfer; (iii) all transfers are subject to a processing fee up to 3%, subject to applicable law, unless the wire transfer is initiated by Booster OS via ACH, in which case the processing fee will be waived; Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Booster to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.

8.2. Taxes. Other than net income taxes imposed on Booster, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Booster after all such Taxes are paid are equal to the amounts to which Booster would have been entitled in accordance with this Agreement if such additional Taxes did not exist.

8.3. Professional Services Charges.
8.3.1 Provision of Professional Services. Subject to the terms of this Agreement, Booster will use commercially reasonable efforts to provide any implementation, installation, configuration, customization, or other professional services expressly identified on an Order Form (which may be in the form of a Statement of Work) (the “Professional Services”). Booster shall perform the Professional Services in a professional manner in accordance with industry standards.

8.3.2. Deliverables. Booster retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Booster in connection with its performance of Professional Services (“Deliverables”). If Booster provides any Deliverables to Customer pursuant to the applicable Order Form, Booster hereby grants to Customer a non-exclusive, royalty-free, fully paid up, worldwide license under Booster’s rights in the Deliverables touse and exploit such Deliverables in connection with the Products and Professional Services during the Term (defined below).

8.3.3. Modifications. The terms of this Section 8.3 will apply to any Order Form for Professional Services that does not expressly set forth a procedure in accordance with which the Parties may make changes to such Order Form. Customer may request a modification to the Professional Services to be performed pursuant to any particular Order Form by written request to Booster specifying the desired modifications (each a “Change Order”). Booster will, within a reasonable time following receipt of such Change Order request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Order Form. If Customer accepts a Change Order in writing within 10 days after receiving it, such modifications in the Change Order shall be performed under the terms of this Agreement.
8.3.4. Personnel
a. Suitability. Booster will assign employees and subcontractors with qualifications suitable for the work described in the relevant Order Form. Booster may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
b. Customer Responsibilities. Customer will make available in a timely manner at no charge to Booster all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by Booster for the performance of the Professional Services. Customer is responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. With prior approval, Customer will provide, at no charge to Booster, office space, services, and equipment as Booster reasonably requires to perform the Professional Services.
c. Non-solicitation. The employees and consultants of Booster who perform the Professional Services are a valuable asset to Booster and are difficult to replace. Accordingly, Customer agrees that, during the Term of the Agreement, and for a period of one year after completion of the Professional Services under an Order Form, it shall not solicit for employment or engagement (whether as an employee, independent contractor or consultant) any Booster employee or consultant who performed any of the Professional Services under that Order Form. Customer is not restricted from hiring any personnel that respond to public job advertisements or similar general solicitations.

9. Shipping and Delivery. All shipments are FOB (2010) Origin, Freight Prepaid, and Charged Back. Customer is solely responsible for confirming that each “Ship To” delivery address set forth in an Order Form is accurate and that any individual accepting delivery at that address is authorized to do so on Customer’s behalf. Booster OS may ship Hardware under an Order Form subject to a schedule as mutually agreed between the Parties or as determined by Booster OS.

10. Accounts. Customer shall be solely responsible for administering and protecting Accounts once access has been provisioned by Booster OS. Booster OS will provide initial account setup and administrative access to Customer’s designated administrator(s) as specified in the Order Form. Customer agrees to provide access to the licensed Booster OS Software only to Authorized Users, and to require such Authorized Users to keep Account login information, including user names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer is solely responsible for monitoring and controlling access to the licensed Booster OS Software and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify Booster OS and de-activate such Account or change the Account’s login information. Authorized Users may only use the licensed Booster OS Software strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein. Customer is responsible and liable for any breach by an Authorized User of his or her obligations hereunder.

11. Customer Data. As between Booster and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into a Product or otherwise makes available to Booster, including in connection with Customer’s use of a Product or receipt of Professional Services and (b) data that is generated and made available to Customer by any Product through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). Customer hereby grants to Booster OS a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating, supporting, improving, and providing the Products, including for anonymized and/or aggregated reporting and use. The foregoing right to use Customer Data shall survive the termination of these Terms, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally-identifiable data. Booster OS will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Booster OS will not share Customer Data without Customer consent, except when the release of data is compelled by law or permitted herein. Customer may export Customer Data at any time during the term of these Terms through the export features in the Booster OS dashboard. Customer acknowledges that some information may not be exportable via the Booster OS dashboard or the API. If the applicable Booster OS Software license terminates or expires and Customer does not renew, the applicable Customer Data may be immediately deleted.

12. Confidentiality.
12.1. Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Booster’s “Confidential Information” includes each Product, all Documentation, all Booster technical information, and all information concerning Product-related database structure information and schema. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

12.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Booster is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.

13. Proprietary Rights.
13.1 Services. Booster OS exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. Customer acknowledges that the Services are protected by patent, copyright, trademark, and other laws of the United States. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Customer shall and hereby irrevocably transfers and assigns to Booster OS all right, title, and interest it may have in any modifications, improvements, or derivatives of the Services made by or for Customer, and Booster OS hereby accepts such transfer. No ownership rights are being conveyed to Customer under these Terms. Except for the express rights granted herein, Booster OS does not grant any other licenses or access rights, whether express or implied, to any other Booster OS software, services, technology or intellectual property rights.

13.2 Firmware. The Firmware is licensed, not sold. Booster OS exclusively own all intellectual property rights in Hardware. Booster OS further retains ownership of the Hardware and Firmware, including all intellectual property rights therein. Customer acknowledges that the Hardware and Firmware is protected by patent, copyright, trademark, and other laws of the United States. Booster OS reserves all rights in the Firmware not expressly granted to Customer in these Terms. Customer acknowledges and agrees that portions of the Firmware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Booster OS.

14. Connectivity Data Usage. A Booster OS Software license only includes connectivity data to the extent such license SKU is identified as including connectivity data and sets forth the amount of connectivity data included. To the extent connectivity data is included in a Booster OS Software license, connectivity between the applicable Hardware and the licensed Booster OS Software does not count towards the included connectivity data cap. Booster OS reserves the right to limit access to personal entertainment streaming services through the Hardware connectivity. Connectivity data usage above any included connectivity data cap may result in the reduction of connection speeds, the restriction of connectivity, the interruption of connectivity, or some combination thereof. Restriction or interruption of connectivity will not impact the function of tracking gallons from the tanker meter.

15. Non-Booster OS Products. The Products may contain links to or have the ability to integrate or interoperate with, import or export data to or from, provide access to, or be accessed by Non-Booster OS Products (MailChimp, Twilio). If Customer opts to use any Non-Booster OS Product Integrations, including but not limited to with respect to the exchange of data between Products and Non-Booster OS Products, Customer agrees to: (i) assume sole responsibility for and all risk arising from Customer’s use of Non-Booster OS Product Integrations and the content, functionality, or availability of any Non-Booster OS Products, including waiving and releasing Booster OS from any claims directly or indirectly related thereto; and (ii) without limitation, defend, indemnify, and hold harmless Booster OS from any third party claims directly or indirectly arising from or related to Customer’s use of any Non-Booster OS Product Integrations. Booster OS PROVIDES NON-Booster OS PRODUCT INTEGRATIONS “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE.

16. Publicity. Customer hereby grants Booster OS permission to use the Customer name and logo on Booster OS ’s website, press releases, and investor and marketing materials to list Customer as a customer. However, Booster OS will not use Customer’s name, trademarks, or logos in any other way without Customer’s prior consent.

17. Term and Renewal.
17.1 Term. Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will continue for the initial term specified in such Order Form (“Initial Order Form Term”) and, if such Order Form provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Form Term or such other length of Renewal Term period as stated on the Order Form (the Initial Order Form Term and each Renewal Term, if any, collectively, the “Order Form Term” of such Order Form). Notice of non-renewal of an Order Form must be provided by a Party at least 30 days prior to the end of the Initial Order Form Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order Form). Renewal of any Order Form may be conditioned on and subject to Customer’s agreement to changes to these Master Terms and applicable Addenda. Termination of this Agreement will terminate all Order Form Terms then in effect unless otherwise specified on the applicable Order Form. Order Forms that are solely for Professional Services will remain in effect until the Professional Services are completed (unless earlier terminated in accordance with this Agreement or the Order Form) and will not automatically renew, nor will any Professional Services included on any other Order Form automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Order Form. Customer acknowledges that its access to Products (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Form Term.

17.2. Termination for Convenience. Either Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order Form is in effect.

17.3. Termination for Material Breach. Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 17.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30- day cure period. Notwithstanding the foregoing, Booster may immediately terminate this Agreement upon notice to Customer if Booster reasonably believes that Customer has made or distributed any unauthorized copies of any Product, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Booster’s intellectual property rights, including rights in and to any Product. Without limiting any other provision of this Section 17.3, if Customer fails to timely pay any fees, Booster may, without limitation to any of its other rights or remedies, suspend access to the Products or performance of the Professional Services under all Order Forms until it receives all amounts due.

17.4. Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement or one or more Order Forms if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.

17.5. Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to Booster any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Booster with a written certification signed by an authorized Customer representative certifying that all use of Products and Documentation by Customer has been discontinued and that all Software and Confidential Information in Customer’s possession or control has been returned or destroyed.

18. Warranties and Disclaimers.
18.1. Limited Booster Warranties. Booster hereby warrants, for the benefit of Customer only, that each Product will materially conform to the applicable Documentation (the “Product Warranty”) for a period of ninety (90) days after the Product is first made available to Customer (the “Warranty Period”), provided that the Product Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Product by Customer or any third party or any combination of the applicable Product with APIs, software, hardware, or other technology not provided by Booster under the applicable Order Form. If any defect or error covered by the Product Warranty occurs, Customer will provide Booster with sufficient detail to allow Booster to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, Booster will, at its sole option, either (a) correct such error or defect in the Product, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the Product and refund any license or subscription fees previously paid by Customer in connection with such Product, and in Customer’s right to use the Product will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for Booster’s breach of the warranty described in the first sentence of this Section 18.1. Booster is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by a Product that Customer has modified, misused, or damaged.

18.2. Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.

18.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 18 OR AN ORDER FORM OR ADDENDUM, BOOSTER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BOOSTER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. BOOSTER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR PROFESSIONAL SERVICES. BOOSTER DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR
UNINTERRUPTED. BOOSTER DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY A PRODUCT OR DOCUMENTATION, OR IN CONNECTION WITH THE PROFESSIONAL SERVICES, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. BOOSTER EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCTS OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.

19. Indemnification
19.1. By Booster. Booster will: (a) at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Product as permitted pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, subject to Section 19.4, and (b) indemnify Customer from and pay the applicable Losses (defined below). Booster will have no obligation under this Section 19, and Customer shall indemnify and hold Booster harmless, for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (1) use of the Product in combination with other products or services not provided by Booster if such infringement or misappropriation would not have arisen but for such combination; (2) the Product having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (3) use of the Product by Customer for purposes not intended or outside the scope of the license granted to Customer; (4) Customer’s failure to use the Product in accordance with instructions provided by Booster, if the infringement or misappropriation would not have occurred but for such failure; or (5) any modification of the Product not made or authorized in writing by Booster where such infringement or misappropriation would not have occurred absent such modification.

19.2. Mitigation; Limited Remedy. If Booster becomes aware of, or anticipates, a Claim subject to Section 19.1, Booster may, at its option: (a) modify the Product so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice and refund to Customer any amounts prepaid for periods after termination is effective.
Sections 19.1 and 19.2 state Booster’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Product.

19.3. Defense by Customer. Customer will: (a) at its expense, defend Booster from any actual or threatened third-party Claim arising out of or based upon breach of any of the provisions of this Agreement, provision of the Customer Data or that is an Excluded Claim, subject to Section 19.4, and (b) indemnify Booster from and pay the applicable Losses.

19.4. Procedures. A party’s obligations as the indemnifying party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 19 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “Losses” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.

20. Limitation of Liability.
20.1. Disclaimer of Indirect Damages. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, BOOSTER WILL NOT BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF BOOSTER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL BOOSTER BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, A PRODUCT.

20.2. Cap on Liability. EXCEPT FOR CLAIMS ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, BOOSTER’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE,WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO BOOSTER UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

20.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BOOSTER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

21. Dispute Resolution.
21.1. Arbitration. Any dispute arising from or relating to these Terms or Customer’s use of the Products that cannot be resolved by the Parties within a period of sixty (60) days after notice of a dispute has been given by one Party hereunder to the other, shall be finally and exclusively settled in one of the following venues, with the choice of venue to be determined by Booster OS at the time the dispute arises: (i) confidential arbitration in San Francisco, California, United States, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS Rules”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes or (ii) the state or federal courts located in San Francisco, California. If Booster OS elects to arbitrate a dispute, the Parties agree that such arbitrator(s) shall have full authority to award preliminary and permanent injunctive relief, damages, and any other relief available in law, at equity, or otherwise pursuant to applicable law and that any emergency arbitrator(s) appointed in accordance with the JAMS Rules shall have authority to grant emergency relief in accordance with such rules.

21.2. Class Action Waiver. Any proceedings to arbitrate or resolve any dispute arising from or relating to these Terms or Customer’s use of the Products in any forum will be conducted solely on an individual basis and not as a class action, consolidated action, private attorney general action, or other representative action. To the fullest extent permitted by applicable law, you expressly waive your right to file a class action, participate in a class action, or seek relief on a class basis. Unless Booster OS agrees in writing otherwise, the arbitrator or other adjudicator will not consolidate more than one person or entity’s claims.

21.3 Governing Law and Jurisdiction. This Agreement, including any disputes arising out of or related to it or the parties’ relationship, shall be governed by the laws of the State of California without regard to its conflict of laws principles and excluding the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Subject to the Agreement to arbitrate set forth herein, exclusive jurisdiction and venue for any legal action or proceeding arising out of or related to this Agreement or the use of the Products shall be the state and federal courts located in San Francisco County, California Each Party irrevocably consents to the exclusive jurisdiction and venue of such courts with respect to any such actions.

22. General Terms.
22.1. Relationship. Booster will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.

22.2. Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Booster may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.

22.3. Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export Products. The Products, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Products are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.

22.4. U.S. Government Restricted Rights. The Software is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.

22.5. Subcontractors. Booster may utilize subcontractors or other third parties to perform its duties under this Agreement so long as Booster remains responsible for all of its obligations under this Agreement.

22.6. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by (i) certified or registered mail, (ii) insured courier, return receipt requested, or (iii) email with confirmation of receipt to the appropriate Party at the address set forth on the applicable Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 22.6. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.

22.7. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including but not limited to acts of God, war, pandemic, epidemic, cyber attacks, government actions, strikes, or other labor disputes, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

22.8. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

22.9. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of a Product under this Agreement is found to be illegal, unenforceable, or invalid, Booster may, in its sole discretion, either (a) modify the limitation to the minimum extent necessary to make it legal and enforceable, or (b) terminate Customer’s right to use the Products immediately upon written notice.

22.10. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.

22.11. Notice Regarding Apple. This Section 22.12 applies to the extent that the Product licensed to Customer is a mobile application on an iOS device. Customer acknowledges that this Agreement is between Customer and Booster only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Product or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Product. If the Product fails to conform to any applicable warranty, Customer may notify Apple and Apple will refund any applicable purchase price for the mobile application to Customer; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Product. Apple is not responsible for addressing any claims by Customer or any third party relating to the Product or Customer’s possession and / or use of the Product, including: (a) product liability claims; (b) any claim that the Product fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Product and / or Customer’s possession and use of the Product infringes a third party’s intellectual property rights. Customer agrees to comply with any applicable third party terms when using the Product. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third party beneficiary of this Agreement. Customer hereby represents and warrants that: (a) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) Customer is not listed on any U.S. Government list of prohibited or restricted parties.

22.12. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Booster that are not described in an Order Form and with respect to which Customer has executed a separate agreement with Booster that remains in effect. No employee, agent, or other representative of Booster has any authority to bind Booster with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Booster will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Booster specifically provides a written acceptance of such provision signed by an authorized agent of Booster.

22.13 Contact Information. If you have any questions about these Terms or the Products, please contact privacy@boosterfuels.com.