BOOM ENTERPRISE CUSTOMER AGREEMENT

PLEASE READ THIS CUSTOMER AGREEMENT (THIS “AGREEMENT”) BEFORE USING THE BOOM SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT (AS DEFINED BELOW) IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THIS AGREEMENT. BY ACCESSING OR USING THE BOOM SERVICES, YOU (THE “CUSTOMER”) SIGNIFY ACCEPTANCE OF, AND AGREE TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN CUSTOMER AND BOOM ENTERPRISE INC., A DELAWARE CORPORATION (“BOOM” AND, TOGETHER WITH CUSTOMER, THE “PARTIES” AND, EACH, A “PARTY”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE ANY OF THE BOOM SERVICES. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE WHICH IS THE EARLIER OF (A) CUSTOMER’S INITIAL ACCESS TO ANY BOOM SERVICES THROUGH ANY ONLINE PROVISIONING, REGISTRATION OR ORDER PROCESS OR (B) THE EFFECTIVE DATE OF THE FIRST ORDER REFERENCING THIS AGREEMENT. THIS AGREEMENT WILL GOVERN THE CUSTOMER’S INITIAL PURCHASE ON THE EFFECTIVE DATE AS WELL AS ANY FUTURE PURCHASES MADE BY CUSTOMER.

FROM TIME TO TIME, BOOM MAY MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT. UNLESS OTHERWISE SPECIFIED BY BOOM, CHANGES BECOME EFFECTIVE FOR CUSTOMER UPON RENEWAL OF THE THEN-CURRENT ORDER TERM OR UPON THE EFFECTIVE DATE OF A NEW ORDER AFTER BOOM PUBLISHES AN UPDATED VERSION OF THIS AGREEMENT. BOOM WILL USE REASONABLE EFFORTS TO NOTIFY CUSTOMER OF CHANGES TO THE TERMS AND CONDITIONS THROUGH COMMUNICATIONS VIA CUSTOMER’S ACCOUNT, EMAIL OR OTHER MEANS. CUSTOMER MAY BE REQUIRED TO CLICK TO ACCEPT OR OTHERWISE AGREE TO THE MODIFIED AGREEMENT BEFORE RENEWING AN ORDER OR UPON THE EFFECTIVE DATE OF A NEW ORDER, AND IN ANY EVENT CONTINUED USE OF ANY BOOM SERVICES AFTER AN UPDATED VERSION OF THIS AGREEMENT GOES INTO EFFECT WILL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THE UPDATED VERSION.

This Agreement was last updated on July 27, 2026.

1. Definitions.

1. (a) “Affiliate” of any Person means any Person that controls, is controlled by, or is under common control with such Person. As used in the context of Affiliates, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or other interests, by contract or otherwise.
2. (b) “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Boom Services solely on Customer’s behalf.
3. (c) “AI Output” means any output generated by the Boom Services, including agent messages, conversational responses, research summaries, analyses, recommendations, and any other content produced by AI agents deployed through the Boom Services.
4. (d) “Customer Data” means any data uploaded to, synced with, integrated into, or otherwise made available to the Boom Services by or on behalf of Customer, including data provided through database synchronization, third-party integrations (e.g., Shopify), event triggers, or manual upload, and including any personal data of Customer’s End Users.
5. (e) “Documentation” means Boom's user materials relating to the Boom Services, which are provided by Boom to Customer through Boom's support site, either electronically or in hard copy form.
6. (f) “Usage Credits” means the units of usage entitling Customer to consume billable actions through the Boom Services, including but not limited to initiating or conducting conversations, sending messages, generating summaries or reports, utilizing voice channels, and such other billable actions as Boom may designate from time to time, in each case, as specified in the applicable Order.
7. (g) “Order” means an order placed by Customer, which may be submitted through the Boom Services, on the Boom website, or through one or more order forms executed by Customer and Boom.
8. (h) “End User” means any individual with whom Customer's AI agents interact or communicate through the Boom Services on Customer's behalf.
9. (i) “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership or other entity.
10. (j) “Messaging Channels” means the communication channels through which the Boom Services facilitate conversations between Customer’s AI agents and End Users, including WhatsApp, SMS, telephone, voice channels (including AI voice agents), and such other channels as may be supported by the Boom Services from time to time.
11. (k) “Boom IP” means the Boom Services (including the Software), the Documentation, all AI models and algorithms used in connection therewith, all technology (including source code, object code and all related algorithms) related thereto and all intellectual property or proprietary rights in the foregoing. For the avoidance of doubt, Boom IP does not include Customer Data or AI Output.
12. (l) “Boom Services” means Boom's AI-powered customer engagement platform, delivered as a software-as-a-service offering, which enables Customer to deploy AI agents that conduct two-way conversations with End Users across Messaging Channels on Customer's behalf.

2. Access and Use.

(a) Provision of Access.

Subject to Customer’s full compliance with all terms and conditions of this Agreement, Boom hereby grants Customer a non-exclusive, non-transferable right to access and use the Boom Services during the Term, solely by Authorized Users, for Customer’s internal business purposes and in accordance with the Documentation. Boom shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Boom Services. Boom may in its sole discretion, modify, enhance or otherwise change the Boom Services from time to time; provided, that such changes will not materially limit or adversely affect the Boom Services provided to Customer hereunder.

(b) Use Restrictions.

Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Boom Services or any software, Documentation or data underlying or related to the Boom Services (“Software”); (ii) copy, modify, translate, or create derivative works of the Boom Services or Software, in whole or in part; (iii) use or access the Boom Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Boom Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Boom Services or Software; (vi) use the Boom Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable laws or regulations; (vii) use the Boom Services to send or initiate any communication to any End User or other individual who has not provided the requisite consent or with whom Customer does not have an adequate legal basis for such communication under all applicable laws and regulations, including the Telephone Consumer Protection Act (47 U.S.C. § 227) (“TCPA”), the CAN-SPAM Act, and any analogous state, federal, or international laws or regulations governing telemarketing, commercial messaging, or automated communications; (viii) use the Boom Services to transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, obscene, or otherwise objectionable; or (ix) permit any third party to do any of the foregoing. Customer will use commercially reasonable efforts to prevent any unauthorized use of the Boom Services or the Software, and will promptly notify Boom of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use. Without limiting this Section 2(b), if Customer is an agency that is using the Boom Services on behalf of an end customer, it must purchase a separate subscription for each end customer on whose behalf it is using the Boom Services.

(c) Reservation of Rights.

Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Boom IP. As between the Parties, Boom retains all right, title and interest in and to the Boom IP.

(d) Suspension.

Notwithstanding anything to the contrary in this Agreement, Boom may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Boom Services if: (i) Boom reasonably determines that (A) there is a threat or attack on any of the Boom IP; (B) Customer’s or any Authorized User’s use of the Boom IP disrupts or poses a security risk to the Boom IP or to any other customer or vendor of Boom; (C) Customer, or any Authorized User, is using the Boom IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Boom's provision of the Boom Services to Customer or any Authorized User is prohibited by applicable law or (ii) in accordance with Section 6.(a)(C) (any such suspension described in sub-clause (i), or (ii) of this Section, a “Service Suspension”). Boom shall use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Boom Services following any Service Suspension. Boom shall use commercially reasonable efforts to resume providing access to the Boom Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Boom will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

3. Service Levels and Support.

Subject to the terms and conditions of this Agreement, Boom shall use commercially reasonable efforts to make the Boom Services available in accordance with the service levels set out in the applicable Order Form, if any.

4. Data Security; DATA PRIVACY.

(a) Data Security.

Boom will maintain commercially reasonable administrative, physical and technical safeguards for the Boom Services to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer Data properly uploaded to, synced with, or ingested by, the Boom Services and processed or stored on a computer and/or computer network owned or controlled by Boom in connection with the Boom Services, including by maintaining security controls consistent with its then-current SOC 2 Type 1 report, a copy of which may be made available to Customer upon Customer’s request. If, at any time, Boom fails to comply with this Section, Customer may promptly notify Boom in writing of any such noncompliance. Boom will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting the noncompliance is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance. Without limiting the foregoing, Boom shall not (i) sell, rent, or otherwise disclose Customer Data to any third party except as necessary to provide the Boom Services or as required by applicable law, (ii) use Customer Data to train, improve, or develop Boom's AI models or algorithms without the Customer’s prior written consent or where Customer has enabled a training feature through the Boom Services settings, or (iii) commingle Customer Data with the data of other customers in any manner that would permit identification of Customer or its End Users.

(b) Data Privacy.

To the extent required pursuant to applicable laws, the Parties will enter into a Data Processing Addendum (the “DPA”) as set forth at https://useboom.ai/dpa, which sets forth the specific terms and conditions under which Boom may receive and process personal data from and on behalf of Customer. For the avoidance of doubt, with respect to any personal data of End Users processed through the Boom Services, Customer is the data controller and Boom is the data processor, and Boom shall process such personal data solely in accordance with Customer's documented instructions and as necessary to provide the Boom Services.

5. Customer Responsibilities.

(a) General.

Customer is responsible and liable for all uses of the Boom Services and Documentation resulting from access provided by Boom, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized Users’ use of the Boom Services, and shall cause Authorized Users to comply with such provisions. Customer is solely responsible for the configuration and deployment of AI agents through the Boom Services, including the selection of data fields, conversation parameters, and permissions that determine what information AI agents may access and share with End Users. Boom shall have no liability for any disclosure of Customer Data to End Users resulting from Customer's configuration of the Boom Services.

(b) Customer Data and Communications Compliance.

Customer is responsible for the accuracy, completeness, quality and legality of all Customer Data (including complying with all applicable laws, rules or regulations requiring notice to, or consent from, End Users and other third parties in connection with providing Customer Data to Boom). Customer represents and warrants that it has obtained all necessary consents, permissions, and legal authorizations required under applicable law to (i) provide Customer Data to Boom for processing through the Boom Services, (ii) initiate communications with End Users through the Messaging Channels, and (iii) permit AI agents to access and use Customer Data in connection with End User interactions. Without limiting the foregoing, Customer shall comply with all applicable laws and regulations governing telemarketing, commercial messaging, and automated communications, including the TCPA, the CAN-SPAM Act, and any analogous state, federal, or international laws. Customer acknowledges and agrees that Boom is acting solely as a platform and service provider, and that Customer bears sole responsibility for ensuring that its use of the Boom Services, including all communications initiated through the Boom Services, complies with all applicable laws and regulations. Customer shall not use the Boom Services to transmit any content that: (i) infringes any third party's intellectual property or other rights; (ii) contains sexually explicit content or pornography; (iii) contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group; (iv) exploits minors; (v) depicts unlawful acts or extreme violence; (vi) promotes fraudulent schemes or any other dubious money-making ventures; or (vii) violates any applicable law.

(c) Third Party Services.

Customer acknowledges and agrees that (i) the Boom Services may operate on, with or using services operated or provided by Customer or third parties (e.g., other technology systems or vendors of Customer, including CRM platforms, e-commerce integrations, and messaging channel providers) (“Third Party Services”), (ii) the availability and operation of the Boom Services or certain portions thereof may be dependent on the performance of such Third Party Services, and (iii) Customer’s failure to provide adequate access to such Third Party Services may result in an interruption or unsatisfactory performance of the Boom Services. Boom does not make any representations or warranties with respect to Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

6. Fees and Payment.

(a) Fees.

Customer shall pay Boom the fees (“Fees”) as set forth in the applicable Order, without offset or deduction. Orders may provide for either of the following billing models, or a combination thereof, as specified therein: (i) Prepaid: a recurring subscription fee (which may include a platform fee and a specified allotment of Usage Credits), plus charges for any additional Usage Credit packs or top-ups purchased by Customer; or (ii) Postpaid: usage-based charges billed in arrears following the close of each billing period (e.g., monthly), calculated based on Customer’s consumption of Usage Credits during such period. Orders may also include one-time fees for platform trials, pilots, or other services. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order or invoice. If Customer fails to make any payment when due, without limiting Boom's other rights and remedies: (A) Boom may charge interest on past due amounts at a rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (B) Customer shall reimburse Boom for all costs incurred by Boom in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (C) if such failure continues for 10 days or more, Boom may suspend Customer’s and its Authorized Users’ access to any portion or all of the Boom Services until such amounts are paid in full.

(b) Payment Method and Recurring Billing.

The terms of Customer’s payment will be based on its payment method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of Customer’s chosen payment method. If Boom, through the payment processor, does not receive payment from Customer, Customer agrees to pay all amounts due on the Customer account upon demand. Some Orders may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Boom Services have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. BOOM MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, UPON THE CLOSE OF A BILLING PERIOD FOR POSTPAID USAGE, OR WHEN USAGE OF CREDITS REACHES A THRESHOLD) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY BOOM) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE BOOM REASONABLY COULD ACT. TO TERMINATE A PAYMENT AUTHORIZATION OR CHANGE A PAYMENT METHOD, GO TO ACCOUNT SETTINGS.

(c) Taxes.

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Boom’s income.

7. CUSTOMER DATA; AI OUTPUT.

(a) General.

As between the Parties, Customer retains all right, title and interest in and to its Customer Data. By making Customer Data available through the Boom Services, Customer grants Boom a non-exclusive, worldwide license to use, reproduce, store, process, modify, and display Customer Data solely as necessary to provide and operate the Boom Services for Customer's benefit. Boom shall not use Customer Data for any purpose other than providing the Boom Services to Customer, except that Boom may use Customer Data in aggregated and de-identified form for purposes of generating industry statistics and analytics, provided that such aggregated data does not identify Customer or any End User. Upon termination or expiration of this Agreement, Boom shall, at Customer's election, return or delete all Customer Data in its possession or control, subject to any retention required by applicable law.

(b) AI Output.

Customer acknowledges and agrees that AI Output is generated by artificial intelligence and machine learning technologies and may contain inaccuracies, errors, or omissions. Boom does not warrant or guarantee the accuracy, completeness, reliability, or suitability of any AI Output for any particular purpose. Customer is solely responsible for reviewing, validating, and determining the appropriateness of any AI Output before relying upon or acting on such AI Output or permitting such AI Output to be communicated to End Users. Boom shall have no liability for any losses, damages, or claims arising from Customer's or any End User's reliance on AI Output. As between the Parties, and to the extent permitted by applicable law, Customer shall own all right, title and interest in AI Output generated specifically from Customer Data; provided, however, that Boom retains all right, title and interest in and to the underlying models, algorithms, and technology used to generate such AI Output.

8. Confidential Information; Feedback.

(a) Confidential Information.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) rightfully known to the receiving Party on a non-confidential basis; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any Person, except to the receiving Party’s employees, consultants, agents or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (such Persons, its “Representatives”). In addition, and except as permitted herein, the receiving Party shall not use the Confidential Information of the disclosing Party except as necessary to exercise its rights or perform its obligations hereunder. The receiving Party shall be responsible for any unauthorized access, use or disclosure of the disclosing Party’s Confidential Information by the receiving Party’s Representatives. Each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. All Confidential Information disclosed pursuant to the preceding sentence will remain subject to the confidentiality and non-use obligations contained herein for all purposes other than such permitted disclosure. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and, at the disclosing Party’s request, certify in writing that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will survive expiration or termination of this Agreement.

(b) Feedback.

Customer or any of its employees or contractors may send or transmit any communications or materials to Boom by mail, email, telephone, or otherwise, suggesting or recommending changes to the Boom Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”). In such case, Customer shall, and hereby does, grant to Boom a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

9. Warranties and Disclaimers.

(a) Mutual.

Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has the necessary organizational power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.

(b) Boom.

Boom warrants that it will not knowingly include, in the Boom Services provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.

(c) Disclaimers.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9, THE BOOM SERVICES AND ALL AI OUTPUT ARE PROVIDED “AS IS” AND BOOM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BOOM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9, BOOM MAKES NO WARRANTY OF ANY KIND THAT THE BOOM SERVICES, ANY AI OUTPUT, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, ARE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR ARE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, BOOM MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OR RELIABILITY OF ANY AI OUTPUT AND CUSTOMER ACKNOWLEDGES THAT AI OUTPUT MAY CONTAIN ERRORS, INACCURACIES, OR OMISSIONS.

10. Indemnification.

(a) Boom Indemnification.

Boom shall indemnify, defend, and hold harmless Customer from and against any and all out of pocket losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Boom Services infringe or misappropriate such third party’s U.S. patents, copyrights, trademarks or trade secrets; provided, that Customer promptly notifies Boom in writing of the claim, cooperates with Boom, and allows Boom sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Boom, at Boom's sole discretion, to (i) modify or replace the Boom Services, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use of the Boom Services in the manner permitted in this Agreement. If Boom reasonably determines that neither alternative is reasonably available, Boom may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund Customer all prepaid but unused fees for the remainder of the then-current Term. The first sentence of this Section 10.(a) will not apply with respect to portions or components of the Boom Services (V) not created by Boom, including but not limited to Customer Data or Third Party Services; (W) that are modified by anyone other than Boom where the alleged infringement relates to such modification; (X) combined with other products, processes or materials where the alleged infringement relates to such combination; (Y) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement or (Z) where Customer’s use thereof is not strictly in accordance with this Agreement and all Documentation.

(b) Customer Indemnification.

Customer shall indemnify, hold harmless, and, at Boom's option, defend Boom from and against any Losses resulting from any Third-Party Claim (i) excluded from the indemnity obligation in Section 10.(a) above, (ii) arising from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Boom Services in a manner not authorized by this Agreement, or (iii) arising from Customer's breach of its representations, warranties, or obligations under Section 5.(b), including any claims related to Customer's failure to obtain required consents for communications with End Users or Customer's violation of the TCPA or other applicable telecommunications or data protection laws. Customer may not settle any Third-Party Claim against Boom unless Boom consents to such settlement, and further provided that Boom will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy.

THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BOOM'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE BOOM SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

11. Limitations of Liability.

(a) Indirect Liabilities.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. FOR THE AVOIDANCE OF DOUBT, BOOM SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY AI OUTPUT, INCLUDING ANY INACCURACY, ERROR, OR OMISSION THEREIN.

(b) Direct Liability.

IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BOOM UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(c) Exclusions.

THE FOREGOING LIMITATIONS IN THIS SECTION 11 SHALL NOT LIMIT (I) A PARTY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 10; (II) DAMAGES ARISING IN CONNECTION WITH A PARTY’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE; OR (III) DAMAGES ARISING IN CONNECTION WITH A PARTY’S MISAPPROPRIATION OR OTHER UNAUTHORIZED USE OF THE OTHER PARTY’S TECHNOLOGY.

12. Term and Termination.

(a) Term.

The initial term of this Agreement (the “Initial Term”) begins on the Effective Date and lasts for the duration of the initial term length set forth in the initial Order entered into hereunder. This Agreement and each Order entered into hereunder will automatically renew for successive terms of the same duration as the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term. Boom may increase the subscription prices for any Renewal Term by providing written notice to Customer at least sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable.

(b) Termination.

In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach and (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (W) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (X) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (Y) makes or seeks to make a general assignment for the benefit of its creditors; or (Z) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. For clarity, in no event shall Customer be permitted to terminate any Order for convenience unless such Order provides for month-to-month use of the Boom Services without a committed term length.

(c) Effect of Expiration or Termination.

Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Boom IP and, without limiting Customer’s obligations under Section 8, Customer shall delete, destroy, or return all copies of the Boom IP and certify in writing to Boom that the Boom IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. Subject to Section 7.(a), Boom shall, upon Customer's written request made within thirty (30) days following termination or expiration, make available to Customer a copy of Customer Data in Boom's possession in a commonly used electronic format, after which Boom may delete all Customer Data in its systems.

(d) Survival.

This Section 12.(d) and Sections 1, 2.(c), 5, 6, 8, 9.(c), 10, 11, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13. Miscellaneous.

(a) Entire Agreement.

This Agreement, together with each Order entered into hereunder and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

(b) Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed: (i) if to Boom, to Boom Enterprise Inc., 1908 Thomes Ave STE 12583, Cheyenne, WY 82001, USA, Attention: Legal, with a copy by email to legal@useboom.ai; and (ii) if to Customer, to the email address or postal address associated with Customer's account or set forth in the applicable Order (in either case, or to such other address as a Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure.

In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Notwithstanding the foregoing, Customer shall not be excused from its payment obligations as a result of the occurrence or persistence of a force majeure event.

(d) Amendment and Modification; Waiver.

From time to time, Boom may modify this Agreement by providing notice to Customer. Such notice may be provided in writing, electronically (including through e-mail or through the Boom Services), or by Boom posting an updated version of this Agreement to its website. The modified version of this Agreement will not become effective as to Boom Services until the first day of the next Renewal Term following the date such modification is posted. Continued use of the Boom Services during a Renewal Term following the modification of this Agreement will constitute Customer’s consent to such modification. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability.

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

(g) Construction.

As used in this Agreement, all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. The words “hereof,” “herein” and “hereunder” and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented in accordance herewith, and not to any subdivision contained in this Agreement. The word “including” when used herein is not intended to be exclusive and means “including, without limitation.” Any reference to a Person shall include that Person’s successors and assigns or to any Person succeeding to that Person’s functions. All references in this Agreement to “Sections” and “Exhibits” refer to the sections and exhibits of this Agreement. Where a date or time period is specified, it will be deemed inclusive of the last day in such period or the date specified, as the case may be. Words, obligations, representations, restrictions, rights, remedies or other matters connected by the word “or” are not exclusive of one another, unless expressly stated otherwise.

(h) Publicity.

During the term of this Agreement, Boom may include Customer’s name and logo in its marketing materials, customer lists, pitch decks, landing pages, case studies, and on its website. To the extent Customer provides standard trademark usage guidelines, Boom shall use Customer’s name and logo in accordance with the guidelines provided by Customer in writing to Boom, if any. Customer hereby grants Boom a non-exclusive, royalty-free, limited license to use Customer's name, logo, and trademarks solely for the purposes described in this Section during the Term. In addition, Customer will cooperate with Boom with respect to a mutually agreed joint press release.

(i) Relationship of the Parties.

For all purposes under this Agreement, each Party will be and act as an independent contractor of the other and will not bind or attempt to bind the other to any contract, and nothing contained herein shall be deemed to constitute either Party as an employee, partner, joint venturer, or agent of the other Party. NOTWITHSTANDING ANY DUTY (INCLUDING ANY FIDUCIARY DUTY) THAT MAY OTHERWISE EXIST AT LAW OR IN EQUITY, TO THE FULLEST EXTENT PERMITTED BY LAW, (I) NO PARTY SHALL HAVE A FIDUCIARY DUTY TO ANY PERSON BOUND BY THIS AGREEMENT, AND (II) THE SOLE DUTIES, IF ANY, OF EACH PARTY TO THIS AGREEMENT AND ITS RESPECTIVE AFFILIATES TO ANY PERSON BOUND BY THIS AGREEMENT SHALL BE LIMITED TO THE CONTRACTUAL DUTIES IMPOSED BY THIS AGREEMENT.

(j) Assignment.

Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. For clarity, the foregoing shall not restrict or otherwise limit Boom's ability to subcontract portions of the Boom Services to its vendors, including its cloud hosting provider.

(k) Export Regulation.

The Boom Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Boom Services or the underlying software or technology to, or make the Boom Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Boom Services or the underlying software or technology available outside the US.

(l) US Government Rights.

Each of the Documentation and the software components that constitute the Boom Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Boom Services and Documentation as are granted to all other end users, 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 US Government users and their contractors.

(m) Equitable Relief.

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the additional case for Customer, Sections 2.(b) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.