BEFORE CLICKING ON THE “ACCEPT” BUTTON YOU (“YOU”, “CUSTOMER”), AS A CUSTOMER OF BLOOMERANG, LLC AND ANY OF ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY OR INDIVIDUALLY REFERRED TO AS “BLOOMERANG” OR “INITLIVE”) MUST CAREFULLY READ THE TERMS AND CONDITIONS SET OUT BELOW GOVERNING CUSTOMER’S ACCOUNT AND ACCESS TO THE BLOOMERANG SERVICES (THE “SERVICES”) AND CUSTOMER’S USE OF THE INITLIVE MOBILE APPLICATION (THE “APP”). BY CLICKING ON THE “ACCEPT” BUTTON, CUSTOMER ACCEPTS AND AGREES TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU, AS CUSTOMER, ARE ENTERING INTO THIS AGREEMENT ON BEHALF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ORGANIZATION OR ENTITY, IN WHICH CASE “YOU” OR“CUSTOMER” SHALL REFER TO SUCH ORGANIZATION OR ENTITY. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT AND DO NOT SUBSCRIBE TO THE SERVICES.
1. THE SERVICES AND LICENSE TO THE SERVICES
1.1 Who the Services are for. The Services have been created for use by:
i. Entities or individuals (“Event Managers”) who organize events (“Events”) and wish to use the Services to assist in scheduling and otherwise liaising with individual Participants (as defined below) who are participating in those Events; and
ii. Individuals (who may be employees, contractors or volunteers) who wish to participate in Events (“Participants”).
Where we refer to “You” or “Customer”, we are referring to both Participants and Event Managers unless the section expressly contemplates otherwise.
1.2 License for Participants to use the Services. If You wish to use the Service as a Participant, Bloomerang grants and You hereby accept, subject to the terms and conditions contained herein, a limited, non-transferable, non-exclusive, worldwide, enterprise-wide and revocable license, without the right to sublicense, (the “License”) to access and use the Services and all materials offered as part of the Services including but not limited to documents, articles and reports (the “Content”) solely for your personal benefit and for the purpose of interacting with Event Managers through the Service. This license will commence upon Your completion of the online subscription process (the “Effective Date”) and will continue until You delete your account or until otherwise terminated in accordance with the terms of this Agreement.
1.3 License for Event Managers to use the Services. If You wish to use the Service as an Event Manager, then subject to Bloomerang’s acceptance of an order form submitted by You subscribing as an Event Manager, the terms of any such order form (which include limitations on the number of Events, number of Participants and/or other limitations that may be managed through the Service) and receipt of payment of the applicable Fees (as defined below), Bloomerang grants and You hereby accept, subject to the terms and conditions contained herein, a limited, non-transferable, non-exclusive, worldwide, enterprise-wide and revocable license, without the right to sublicense, (the “License”) to access and use the Services and all materials offered as part of the Services including but not limited to documents, articles and reports (the “Content”) solely for your personal benefit and for the purpose of interacting with Participants through the Service. This license will commence upon Your completion of the online subscription process (the “Effective Date”) and will continue until the end of the term specified in the applicable order form or until otherwise terminated in accordance with the terms of this Agreement.
1.4 License for App. Bloomerang grants and You hereby accept subject to the terms and conditions contained herein, a limited, non-exclusive, non-transferable, non-assignable license to install and use the App solely to access the Services on the terms of the licenses granted to you above.
1.5 Restrictions. You acknowledge that the Services, the App and the Content, constitute valuable trade secrets of InitLive and its licensors. Except as otherwise set out in this Agreement, Customer shall not (i) copy or use the Services, the App or the Content; (ii) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Services, App or the Content, in whole or in part; (iii) modify or create any derivative works from the Services, App or the Content any part thereof; (iv) merge the Services or the Content with any other software; (v) disclose to any third party any performance information or analysis relating to the Services and the Content; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Services, the App or the Content or any of Your rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (vi) build an identical product to the Services or the App or a product with similar ideas, features and functionality as the Services or the App; and (vii) copy any ideas, features of functions of the Services or the App. You agree to retain, on all copies of any Content You download, all copyright and other proprietary notices contained in the Content. The Services, the App and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. You agree to comply with all copyright laws worldwide in Your use of the Services, the App and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, InitLive does not grant any express or implied right or license to You under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of InitLive or its licensors.
2. CUSTOMER DATA 2.1 Customer Data. In the course of using the Services, You may upload certain information, data and material through the Services (the “Customer Data“). You agree that the Customer Data will (i) comply with all applicable laws; (ii) not contain infringing, obscene, threatening, libelous, or other illegal material or information (“Illegal Information”); (iii) not include material containing software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not contain any content, work, name, logo or mark that infringes any intellectual property right of any person. You acknowledge that You have obtained the consent to use any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“PIPEDA”) and all other applicable privacy legislation, including without limitation the General Data Protection Regulation (EU) 2016/679 ) contained in the Customer Data from the person to whom the Personal Information pertains, and that You have complied with all relevant privacy laws in collecting, using the disclosing such Personal Information.
2.2 Ownership. Subject to the below, the parties acknowledge that You own the Customer Data and all intellectual property rights therein, or that You have the right to grant the license to InitLive to use such Customer Data. You will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership of the Customer Data and for obtaining the right to use all of the Customer Data submitted by You. You acknowledge that InitLive will have no responsibility or liability for the Customer Data. Where You are a Participant who liaises with Event Managers through the Services, you acknowledge that Event Managers may own personal information that relates to your interaction with them.
3. EVENT MANAGER FEES
This section only applies to Event Managers, and the use of “You” and “Customer” in this section shall be construed accordingly.
3.1 Fees. You shall pay Bloomerang (or its authorized reseller if subscribing through a reseller) for access to the Services in accordance with InitLive’s current fee schedule and/or as otherwise specified in the order form or by the authorized reseller (the “Fees”). You shall pay the Fees, any renewal Fees and any additional Fees You incur in association with the purchase of additional services and features by payment methods identified during the ordering process. Bloomerang reserves the right to terminate your access to the Services if you fail to pay any Fees when due or if you provide false or fraudulent billing or contact information during the online subscription process. Bloomerang reserves the right to amend its fee schedule from time to time.
3.2 Taxes. All fees and other charges specified in this Agreement are exclusive of all applicable goods and services taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). You will pay all Purchase Taxes, other than taxes on Bloomerang’s net income, as a result of the transactions contemplated by this Agreement.
4. YOUR RESPONSIBILITIES 4.1 Account. You are responsible for all of the activity associated with Your account and You agree to notify Bloomerang immediately in the event of any unauthorized use of Your account or password or if You suspect Your account or password has been compromised in any way. You agree not to misrepresent Yourself in order to gain access to the Services. You are responsible for advising Bloomerang of any change in Your billing or contact information.
4.2 Sensitive Information. If You are an Event Manager creating events in the system, you shall not request that Participants submit any financial information (including, but not limited to, credit card or banking information), health-related information, Personal Information including: Race/ethnicity, Political Opinions, Religious/Philosophical Beliefs, Union Membership, Genetic Data, Biometric Data, Health Data, Sexual Orientation or any Illegal Information (collectively the “Sensitive Information”) to the Services.
4.3 Applicable Laws. You must abide by all applicable local, provincial, state and national laws and all relevant treaties and directives in Your use of the Services.
4.4 Limiting Access. You shall not permit persons other than Your authorized representatives to access the Services or to use the App. You represent that you are not a competitor of Bloomerang and agree that you shall not knowingly allow competitors of Bloomerang to access the Services.
4.5 No Responsibility. Bloomerang accepts no responsibility and shall not be held liable for any delays, performance issues, stoppages, outages, increased costs or other similar events relating to the Services or to the App resulting from Your failure to adhere to the provisions set out in this Section.
4.5 Updated Application. You are responsible for ensuring that you have downloaded the most recent version of the Bloomerang application and acknowledge that failure to do so may result in your inability to access and use the Services.
5. THIRD PARTIES. 5.1 Third Party Links. The Services may contain hyperlinks to websites managed by third parties. These links are provided for convenience only. Bloomerang has no control over websites owned by third parties and Bloomerang makes no representation or warranty regarding, and does not endorse, any linked websites, the information appearing thereon or any of the products or services described thereon, or the linked-party sources (including any viruses access through them), the quality of the products or services offered, the security of performing transactions on those websites or the privacy policies on the websites in question. Links do not imply that Bloomerang sponsors, endorses, is affiliated or associated with, or is legally authorized to use any trade-mark, trade name, logo or copyright symbol displayed on or accessible through the links or that any linked website is authorized to use any trade-mark, trade name, logo or copyright symbol of Bloomerang. Bloomerang cannot be held liable for possible damages arising from Your use of such third-party sites.
5.2 Content. The Services may from time to time contain materials, data or information provided, posted or offered by third parties. You agree that Bloomerang will have no liability whatsoever to You for any such third party material, data or information.
6. OWNERSHIP 6.1 Ownership of Software. Bloomerang and its licensors own all right, title and interest in and to the Services, the App and the Content, including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of Your rights in connection with the Services and the Content, including but not limited to the right to access and use the Services and the Content, will terminate.
6.2 Trade-marks. The trade-marks, logos and company names of Bloomerang or any of its affiliates and licensors used as part of the Services, the App and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Bloomerang or any such affiliate or licensor. Other products, services logos and company names mentioned as part of the Services, the App and in the Content may be the trade-marks of their respective owners. You agree that Bloomerang may use your company or organization’s name and logo for marketing purposes.
6.3 Proprietary Notices. You agree not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Services, the App and the Content or in or on any related material.
7. WARRANTIES 7.1 Services. Bloomerang warrants that the Services are designed to and shall operate in substantial conformity with the specifications set out in the user documentation.
7.2 Content. The Content may contain inaccuracies and typographical errors. Bloomerang makes no representation or warranty regarding the accuracy or completeness of the Content or information accessible while using the Services, or the reliability of any advice, opinion, statement or other information displayed or distributed through the Services. You acknowledge that any reliance on any of the foregoing and Your use of the Services and the Content shall be at Your sole risk. Bloomerang reserves the right, in its sole discretion, to correct any errors or omissions in any part of the Services or in any portion of the Content. Bloomerang may make any other changes to the Services and the Content at any time without notice.
7.3 General Warranty. Bloomerang warrants that (i) Bloomerang has the right to enter into this Agreement; (ii) to Bloomerang knowledge, neither the Services nor the Content infringes upon the Proprietary Rights of any third party; (iii) to Bloomerang’s knowledge, there are no liens, encumbrances or claims pending or threatened against Bloomerang or that adversely relate to the rights or licenses granted in this Agreement or to the Services and the Content; and, (iv) subject to the standard conditions applicable to shrink wrap software and other foundational software used in the creation of, or required in conjunction with, the Services, no licenses, permission or releases of third party rights are necessary for Your use of the Services in accordance with the terms of this Agreement. For purposes of this Agreement, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
7.4 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 7, THE SERVICES, THE APP AND THE CONTENT ARE PROVIDED “AS IS” AND BLOOMERANG AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BLOOMERANG DOES NOT WARRANT THAT THE SERVICES, THE APP AND THE CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES, THE APP AND/OR THE CONTENT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE NOR THAT ANY CUSTOMER DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. BLOOMERANG DOES NOT WARRANT THAT USE OF THE SERVICES WILL ENABLE YOU TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN YOUR BUSINESS OPERATIONS.
7.5 Evaluation License. YOU ACKNOWLEDGE THAT IF YOU ARE USING AND ACCESSING THE SERVICES AS PART OF AN EVALUATION OR TRIAL LICENSE OR IN ANY OTHER CIRCUMSTANCE WHERE YOU ARE NOT PAYING ANY FEES TO BLOOMERANG, THAT BLOOMERANG IS PROVIDING YOU THE SERVICES “AS IS” AND THE WARRANTIES SET OUT IN THIS AGREEMENT DO NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY 8.1 IN NO EVENT WILL EITHER PARTY, ITS EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL BLOOMERANG BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE LESSER OF: (I) $10,000 AND (II) THE AMOUNT PAID TO BLOOMERANG HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. BLOOMERANG WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET, WIFI, CELLULAR AND ELECTRONIC COMMUNICATION. THESE LIMITATIONS WILL APPLY EVEN IF BLOOMERANG HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
8.2 Bloomerang will not be liable for the deletion of, correction to, destruction of, damage to, loss of or failure to store the Customer Data.
9. INDEMNIFICATION 9.1 Indemnification by Bloomerang. Bloomerang shall indemnify, defend and hold You harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by Bloomerang of any Proprietary Right with respect to the Services and the Content; provided, however, that the foregoing notwithstanding, Bloomerang’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Services by You or Your employees, agents or customers.
9.2 Cooperation. Notwithstanding Section 9.1 of this Agreement, Bloomerang is under no obligation to indemnify and hold You harmless unless (i) Bloomerang receives notice of the suit or claim from You and is furnished with a copy of each communication, notice or other action relating to said claim promptly after You receive such notice and each such communication; provided that, failure to deliver timely notice shall not relieve Bloomerang of its obligations hereunder unless Bloomerang is materially prejudiced by such failure; (ii) Bloomerang will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Bloomerang’s expense; and (iii) You will provide reasonable information and assistance requested by Bloomerang in connection with such claim or suit, at Bloomerang’s cost and expense. You reserve the right to participate in the defense of any such claim and to be represented by counsel of Your choice.
9.3 Indemnification by You. You shall indemnify, defend and hold Bloomerang harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that You have engaged in conduct, which if true would breach Your warranties or obligations under this Agreement; (b) any allegation that the Customer Data infringes the Proprietary Rights of any third party; (c) Your negligent or willful misconduct; (d) any violation by You of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to Bloomerang hereunder; and (e) any Sensitive Information collected, uploading and stored by You on the Services and any Sensitive Information that You requested that any Participant upload to the Services.
Bloomerang reserves the right to participate in the defense of any such claim and to be represented by counsel of its choice.
10. TERM AND TERMINATION 10.1 Term. This Agreement will commence on the Effective Date and will continue in full force and effect until terminated in accordance with the terms of this Agreement.
10.2 Termination Upon Insolvency. This Agreement will terminate, effective upon delivery of written notice by a party hereto, (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (ii) upon the making of an assignment for the benefit of creditors by the other party, or (iii) upon the dissolution of the other party.
10.3 Termination Upon Default. The non-breaching party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues and is not remedied for a period of thirty (30) days following written notice of default; provided, however, that if either party contests either the existence or the basis of a breach asserted by the other party (a “Dispute”), then such Dispute shall be resolved pursuant to Section 12.3 and if such Dispute is resolved in favor of the party asserting such breach, then the other party shall have thirty (30) days to cure such breach as directed by the third party resolving such Dispute.
10.4 Auto Renewal. If you are an Event Manager subscribing for the Services, the term of your initial subscription shall be as set out in the applicable order form (“Initial Term”) and the remainder of this section shall apply to you. On termination of the Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms thereafter (each a “Renewal Term”) until and unless either party provides the other party with sixty (60) days prior written notice to the end of the Initial Term or the then-current Renewal Term, as applicable. The Fees shall be payable in respect of any Renewal Term in accordance with the terms of this agreement and the applicable order form (as may be varied from time to time in accordance with the terms of this agreement). This section only applies to order forms submitted or accepted after October 1, 2018.
10.5 Termination for Convenience. Bloomerang may terminate this Agreement for convenience by providing You with at least fifteen (15) days written notice. You will be refunded a pro-rata amount of the Fees prepaid by You.
10.6 Survival of Certain Terms. All provisions of this Agreement reasonably required to survive termination based on the terms of this Agreement shall survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
10.7 Effect of Termination. Upon termination of this Agreement for any reason Your access to the Services will end immediately and Your account will be disabled. For a period of thirty (30) days following termination of this Agreement for any reason, Bloomerang will make available to You a file of the Your Data if You so request at the time of termination. You agree and acknowledge that Bloomerang is not obliged to retain the Your Data, and after thirty (30) days following termination, may delete Your Data.
11. CONFIDENTIAL INFORMATION
Neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Services and the Content, including methods, ideas or concepts utilized therein, and all information identified by a disclosing party as proprietary or confidential (“Confidential Information”) will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items shall not be considered to be Confidential Information if they are (i) available to the public other than by a breach of this Agreement or an agreement with the disclosing party, (ii) rightfully received from a third party not in breach of an obligation of confidentiality, (iii) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (iv) rightfully known to the recipient at the time of disclosure, or (v) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. You agree that the terms and conditions of this Agreement will be considered to be Confidential Information of Bloomerang.
11.2 Data Protection. Notwithstanding anything in this Agreement to the contrary, Bloomerang shall maintain the appropriate security safeguards reasonably necessary to prevent unauthorized persons from accessing, using, disclosing, or otherwise committing any act that could breach or compromise the privacy, availability, integrity, or content of Your Confidential Information. Bloomerang shall transmit any and all Confidential Information in encrypted form using a commercially supported encryption solution. In the event Bloomerang or any of its representatives becomes aware of any unauthorized access to, use or disclosure of, or potential access to or use or disclosure of any of Your Confidential Information while it is in the possession of Bloomerang or its subcontractors or affiliates (a “Data Breach”), Bloomerang shall promptly, and at its own expense: (a) notify You of the Data Breach; and (b) cooperate with Your investigation, analysis, notification and mitigation activities. If you are an Event Manager subject to the terms of the GDPR You are bound by the terms of Bloomerang’s Data Protection Addendum [https://www.initlive.com/terms-conditions/dpa] which is incorporated by reference into these Terms and Conditions.
12. MISCELLANEOUS 12.1 Notices. Any notice required or permitted hereunder will be in writing and will be given by electronic mail at [email protected]. Such notice will be deemed to have been received twelve (12) hours after it was sent.
12.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by You.
12.3 Governing Law. This Agreement is to be governed by and construed in accordance with the laws of Indiana, without regard to its conflict of law principles.
12.4 Litigation Costs and Expenses. If any party institutes any legal suit, action or proceeding against the other party to enforce this Agreement (or obtain any other remedy regarding any breach of this Agreement) or arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses, court costs and other reasonable costs and expenses of litigation.
12.5 Severability. If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force.
12.6 Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
12.7 Independent Contractors. The relationship of Bloomerang and You established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of Bloomerang and You are their sole respective responsibilities.
12.8 Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by Bloomerang upon notification to You. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.