Introduction

These Terms of Use (“TOU”) apply to your access and use of Boomerang Ideas’ products, services, websites, and apps that you purchase or sign up for on Boomerang Ideas’ websites and which are branded as “Boomerang Ideas”, "Boomerang", “Visu.la”, "BoomArt", "BoomSociety", Boomerang.ai, Boomerang AI or "BoomResearch" (collectively the “Service(s)”). You agree to these Terms by clicking to accept these Terms, executing a document that references them, or using the Services.

If you will be using the services on behalf of an organization, you agree to these Terms on behalf of that organization, and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization. 
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A tracker or Boomerang (hereafter Boomerangs or Boomerang), includes surveys of target groups via social media posts and links on social media channels such as Facebook, Instagram and others (hereafter social media channels or platforms). All Boomerangs divide the posts into different groupings (strata such as age, gender, region, etc.) and thus provide a more accurate reflection of the population.

In a nutshell

1. Limitations: Covers 18-65+ year old’s (in some cases 13-65+) who are on social media channels in the respective country, and thus no target groups outside the reach of social media. By representative, we mean users between the above mentioned age groups of the social media channels in the respective country.

2. Control and refund

   • There are no refunds once the Boomerang is launched unless it has to be canceled.
   • Canceled Boomerangs allow for partial refunds up to the already completed samples if Boomerangs become economically unreasonable for us (a), are stopped by the social network (b) or are affected by a technical issue which is not solvable immediately (c).
   • In the following cases and only within the first approx. 24 hours (the "Testing Phase"), we take the liberty to cancel the Boomerang and refund you 100% of the sales price:
   • • If a Boomerang does not resonate with the target audience and therefore will not reach enough votes.
     • If a Boomerang is rejected by the social media channels.
     • If a Boomerang would harm our brand or may have a negative effect on society.
   • Duration: The Testing Phase which can take approx. 24 hours is not part of the promised duration of each Boomerang and therefore extends the effective completion of the survey by this time.
   • Sales price: The promised sales price is only guaranteed upon completion of the Testing Phase and may be different based on the validation results of the testing phase.
   • Reasons for rejection may include (list not exhaustive):
   • Content that is illegal or discriminatory
   • Content that relates to politics, elections, social causes, guns, tobacco, gambling, dating services, adult entertainment or crypto
   • Political content, content concerning elections or social causes

3. Participants of the surveys

   • Voluntary participation by clicking or commenting on social media posts.
   • Participants are defined by filters from survey creation (e.g. age, region, etc.).
   • Representative boomerangs: subdivision into cluster groups with same characteristics (e.g., same age, region, etc.).
   • Certain survey formats allow viewing of comments. These could cause bias.
   • Participants have the possibility to remove their vote.

4. Representativeness

   • By the "representative" or representativeness option, we mean the following:
   • 18-65+ (or in some cases 13-65+) year olds on social media channels from the country in question.
   • Subdivision of groups by major region, gender, age.
   • Results in the dashboard are weighted according to ground truth data from the statistical office.

5. About Boomerang Ideas

   • We are an independent market research institute that works according to the highest ethical principles and data protection.

6. Data Processing Agreement

   • The Data Processing Agreement is part of these terms and conditions.

7. Publishing: Publication of any results of a Boomerang survey is only allowed with our written confirmation. We recommend booking the gfs.digital package (selected in checkout) which waives the need for a written confirmation and includes all publication rights and the necessary consulting by gfs.digital which is part of the research institute gfs.bern AG.

8. Disclaimer: We are not liable for the accuracy of the method or the promised duration of the survey which is based on previous data but affected by elements out of our control such as longer than expected approval times of social networks. This is a fully automated form of highly scaled and targeted advertising which is reliant on intelligent controls and evaluation on the respective social media platform. We are not liable for lost profits due to decisions based on a Boomerang.
   
9. Severability Clause: If any provision of this agreement is found to be void, incomplete or invalid, this shall not invalidate the entire agreement.

1.   Fees and Payments

1.1 Fees for Services.

You agree to pay Boomerang Ideas any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. If you have selected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct, and you will promptly notify Boomerang Ideas of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
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In the case of a communication of special categories of data based on voluntary consent, their processing is based on Art. 9 para. 2 lit. a. DSGVO.

We process personal data for the duration required for the respective purpose or purposes. In the case of longer-term retention obligations due to legal and other obligations to which we are subject, we restrict processing accordingly.

1.2 Subscriptions.

Some of our Services are billed on a subscription basis (hereafter “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly, quarterly or annually, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal at least 30 days in advance through your online account management page, or by contacting our customer support team at hello@boomerangideas.com. You may cancel auto-renewal on your subscription at any time, in which case your subscription will continue until the end of that billing cycle before terminating.  

1.3 Taxes.

Apart from Swiss-based user accounts, our prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively,“Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.

• United States Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which, if your billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless you timely provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority. The tax rules used by Boomerang Ideas are based on Swiss law, which differs from the tax rules of the USA. To be timely, you must provide us with a tax exemption certificate before your initial purchase or upgrade, or, if you miss that mark, within 90 days after such purchase or upgrade, unless your billing information is in Alabama, Louisiana, Maine, Massachusetts, Pennsylvania, or South Carolina in which case within 60 days; or if in Hawaii, Mississippi, or New Mexico within 45 days. If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such document current and accurate. If we have collected sales tax from you and subsequently determine in our sole discretion that your tax exemption certificate is valid, we will refund the sales tax collected based on applicable state tax laws.
• Non-United States Sales Tax. If applicable, we will charge you VAT, GST or any other sales, consumption or use taxes that arise in connection with your purchases of Boomerang Ideas Services unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you are located in a jurisdiction with multiple sales, consumption or use taxes, we may charge you the highest prevailing rate if your billing information is incomplete or inaccurate.

If you are required by law to withhold any Taxes from your payments to Boomerang Ideas, you must provide Boomerang Ideas with an official tax receipt or other appropriate documentation to support such payments.

1.4 Price Changes.

Boomerang Ideas may change the fees charged to you for the Services at any time, provided that, for Subscriptions, the change will become effective only at the end of the then-current billing cycle of your Subscription.

1.5 Overage Fees.

Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service subject to applicable law.

2. Privacy

2.1 Privacy.

In the course of using the Services, you may submit content to Boomerang Ideas (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the above will be referred to as your “Content”). We know that by giving us your Content, you are trusting us to treat it appropriately. Boomerang Ideas’ Privacy Policy, together with any Service-specific privacy notices or statements (collectively, “Boomerang Ideas privacy notices”), detail how we treat your Content, and we agree to adhere to those Boomerang Ideas privacy notices. You in turn agree that Boomerang Ideas may use and share your Content in accordance with the Boomerang Ideas privacy notices and applicable data protection laws. You also agree that you are responsible for notifying these third parties about the Boomerang Ideas privacy notices. Our Data Processing Agreement also apply to and are supplemental to these Terms. Where there is a conflict between the Data Processing Agreement and these Terms, the Data Processing Agreement will prevail except with respect to Exclusion and Limitation of Liability where these Terms will prevail. 

2.2 Confidentiality.

Boomerang Ideas will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the Boomerang Ideas privacy notices). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Boomerang Ideas); (b) was lawfully known to Boomerang Ideas before receiving it from you; (c) is received by Boomerang Ideas from a third party without knowledge of breach of any obligation owed to you; (d) is shared in the context of your account being identified by you as a business owned account or migrated to an organization’s Enterprise account, if your account is registered using a work email address within that organization; or(e) was independently developed by Boomerang Ideas without reference to your Content. Boomerang Ideas may disclose your Content when required by law or legal process, but only after Boomerang Ideas, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

2.3 Security.

Boomerang Ideas will store and process your Content in a manner consistent with industry security standards. Boomerang Ideas has implemented appropriate technical, organizational, and administrative systems, policies, and procedures. If Boomerang Ideas becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), Boomerang Ideas will take reasonable steps to notify you without undue delay, but in any event as soon as possible of becoming aware of the Security Incident impacting your account. Boomerang Ideas will also reasonably cooperate with you with respect to any investigations relating to a Security Incident, any required notices, and providing information reasonably requested by you and available to us in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by Boomerang Ideas.

3. Your Content

3.1 You Retain Ownership of Your Content.

You retain ownership of all of your intellectual property rights in your Content. Boomerang Ideas does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited license described in these Terms.

3.2 Limited License to Your Content.

You grant Boomerang Ideas a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing and improving the Services and as permitted by the Boomerang Ideas privacy notices. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and disidentified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Boomerang Ideas’ business (subject to our retention policies). This license also extends to any trusted third parties we work with to the extent necessary to provide and improve the Services.

3.3 Representations and Warranties.

You represent and warrant that: you own or control the appropriate rights in and to your Content, including any intellectual property owned by third parties.

3.4 Responsibility for Your Content.

The Services may display content not owned by Boomerang Ideas but by others.  The entity that makes such content available is responsible for it.  You are responsible for your Content, and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services.  Boomerang Ideas is not responsible for any actions you take with respect to your Content, including sharing it publicly. Subject to applicable law, Boomerang Ideas is not liable for your Content, any other third-party content or materials, or any loss or damage resulting from your use of, or reliance on, such Content or other third-party content or materials.

You acknowledge that, to ensure compliance with legal obligations, Boomerang Ideas may be required to review certain of your Content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display your Content that we believe violates the law or these Terms. In the event your Content includes third-party brands, logos or other source identifiers, we may require you to submit a statement of non-affiliation before you may use such Content in connection with the Services. However, Boomerang Ideas otherwise has no obligation to monitor or review any content submitted to the Services.

4. Third Party Resources

Boomerang Ideas may publish links in its Services to internet websites maintained by third parties. Boomerang Ideas does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.

5. Account Management

5.1 Keep Your Password Secure.

If you have been issued an account by Boomerang Ideas in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Boomerang Ideas, are responsible for any activity occurring in your account (other than activity that Boomerang Ideas is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Boomerang Ideas immediately. Accounts may not be shared and may only be used by one individual per account.

5.2 Keep Your Email and Account Details Accurate.

Boomerang Ideas occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.

5.3 Remember to Back-up.

You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Boomerang Ideas will not be liable for any failure to store, or for loss or corruption of, your Content.

5.4 Account Inactivity.

Boomerang Ideas may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, where appropriate, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.

6. User Requirements

6.1 Minors.

“Minors” are individuals under the age of 18. None of the paid Services are intended for use by Minors. If you are a Minor in your place of residence, you may not use the paid Services. By using the paid Services, you represent and warrant that you are not a Minor. This does not exclude underage participants in the surveys.

7. Acceptable Uses Policy

You agree to comply with the Acceptable Uses Policy.

8. PCI Compliance

8.1 PCI Standards.

If you use the Services to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent they are applicable to your business (the “PCI Standards”). Boomerang Ideas provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant and the specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Services.

9. Suspension and Termination of Services

9.1 By You.

You can terminate your Subscription and delete your account at any time by sending a request to hello@boomerangideas.com. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately, and you will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; (b) a refund is required by law; or (c) we, in our sole discretion, determine a refund is appropriate. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or are fund is required by law.

9.2 By Boomerang Ideas.

• For Convenience. Boomerang Ideas may terminate your Subscription effective at the end of a billing cycle by providing at least 30 days’ prior written notice to you without refund for any prior period. Additionally, Boomerang Ideas may terminate your Subscription at any time during the billing cycle by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. 
• For Cause. Boomerang Ideas may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after Boomerang Ideas has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or
• You fail to pay fees for 30 days past the due date. Additionally, Boomerang Ideas may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavour to give you advance notice and an opportunity to obtain a copy of your Content from that Service. However, there may be time sensitive situations where Boomerang Ideas may decide that we need to take immediate action without notice. Boomerang Ideas will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this section as is needed to resolve the issue that prompted such action. Boomerang Ideas has no obligation to retain your Content upon termination of the applicable Service.
  

10. Changes and Updates

10.1 Changes to Terms.

Boomerang Ideas may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the Boomerang Ideas website. If an amendment is material, as determined in Boomerang Ideas’ sole discretion, Boomerang Ideas will notify you by email. Notice of amendments may also be posted upon your login to your account. Except as otherwise specified by us, changes will be effective no sooner than the day they are publicly posted. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because (unless otherwise stated in law) by continuing to use the Services you indicate your agreement to be bound by the updated terms.

10.2 Changes to Services.

Boomerang Ideas constantly changes and improves the Services. Boomerang Ideas may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. Boomerang Ideas may also limit, suspend, or discontinue a Service provided to you at its discretion. If Boomerang Ideas discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. Boomerang Ideas may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.

10.3 Downgrades.

Downgrading your account plan may cause the loss of Content, features, functionality, or capacity of your account.

11. Disclaimers, Limitations of Liability and Indemnification

11.1 Disclaimers.

While it is in Boomerang Ideas’ interest to provide you with a great experience when using the Services, there are certain things we do not promise about them. We try to keep our online services up, but they may be unavailable from time to time for various reasons. Except as expressly provided in these terms and to the extent permitted by applicable law, the services and any guidance or recommendations therein are provided “as is” and Boomerang Ideas does not make warranties of any kind, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, and non-infringement or any representations regarding availability, reliability, or accuracy of the services.

11.2 Exclusion of Certain Liability.

To the extent permitted by applicable law, Boomerang Ideas (including its affiliates and its and their officers, employees, agents, suppliers, and licensors) will not be liable for (a) any indirect, consequential, special, incidental, punitive, or exemplary damages whatsoever, or (b) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), arising out of or in connection with the services and these terms, and whether based on contract, tort, strict liability, or any other legal theory, even if Boomerang Ideas has been advised of the possibility of such damages and even if a remedy fails of its essential purpose.

11.3 Limitation of Liability.

Any liability of Boomerang Ideas for loss or damages suffered in the absence of any intentional or grossly negligent breach by Boomerang Ideas of its duty of care is excluded to the extent legally permissible. In the event of loss or damages due to such a breach by Boomerang Ideas, Boomerang Ideas shall be liable only for direct losses caused with intent or gross negligence. Any liability of Boomerang Ideas for indirect or consequential losses (including loss of profit) is excluded.

11.4 Consumers.

While our Services are most often used for business, we acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer using our Services for non-business reasons, nothing in these Terms limits any of those consumer rights.

11.5 Indemnification.

If you are a business, you will indemnify and hold harmless Boomerang Ideas (including its affiliates and its and their officers, agents, and employees) from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.

12. Contracting Entity

12.1 Who you are contracting with.

Unless otherwise noted, the Services are provided by, and you are contracting with, Boomerang Ideas AG in Switzerland.

12.2 Boomerang Ideas AG.

For any Service provided by Boomerang Ideas AG, the following provisions will apply to any terms governing that Service:

• Contracting Entity. References to “Boomerang Ideas”, “we”, “us”, and “our” are references to Boomerang Ideas AG, located at Silhlquai 131, 8005 Zürich, Switzerland.
• Applicable Law. These terms and conditions are governed by Swiss law.
• Jurisdiction. All legal relations between you and Boomerang Ideas, including the Business Relationship, are exclusively governed by the laws of Switzerland with the exclusion of the conflict of law principles.
• The exclusive jurisdiction for any disputes arising in connection with the legal relations between you and Boomerang Ideas is the city of Zurich, Switzerland.

13. Other Terms

13.1 Assignment.

You may not assign these Terms without Boomerang Ideas’ prior written consent, which may be withheld in Boomerang Ideas’ sole discretion. Boomerang Ideas may assign these Terms at any time without notice to you.

13.2 Customer Lists.

Boomerang Ideas may identify you by name and logo as a customer of the Services on our websites and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.

13.3 Entire Agreement.

These Terms (including the Additional Terms) constitute the entire agreement between you and Boomerang Ideas, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.

13.4 Interpretation.

The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.

13.5 No Waiver.

A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.

13.6 Precedence.

To the extent any conflict exists, the Additional Terms prevail over these TOU with respect to the Services to which the Additional Terms apply.

13.7 Severability.

If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.

13.8 Third Party Beneficiaries.

There are no third-party beneficiaries to these Terms.