Last Updated: May 5, 2020
Boosta reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide you with notice of such changes through the App or by updating the “Last Updated” date at the beginning of this Agreement. By continuing to use the App you confirm your acceptance of the revised Agreement and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when your use the App. If you do not agree to the revised Terms, you may not use and must uninstall the App from your iOS device.
All users who are under the age of 13 are not permitted to use the App.
“Boosta’s Confidential Information” means confidential information regarding Boosta’s business, including without limitation the App, User information, business models, revenue information, and other proprietary information which constitutes trade secrets of Boosta.
“Content” means content and other materials contained on the App, including, without limitation, the Boosta logo and all designs, text, graphics, pictures, information, data, software, Challenges and their associated video files, User Information, other files and the selection and arrangement thereof.
“Challenge” means step-by-step interactive, learnable skills and techniques to assist Athletes in learning new skills and are comprised of the demonstration video and associated text provided by the Trainers.
“Credential” means a password, user identification code or methodology which allows access to the App.
“Intellectual Property Rights” means all United States and worldwide trademarks, service marks, trade names, trade dress, logos, copyrights, rights of authorship, inventions, moral rights, patents, rights of inventorship, all applications, registrations and renewals in connection with any of the above, database rights, know-how, trade secrets, rights of publicity, privacy and/or defamation, rights under unfair competition and unfair trade practices laws, and all other intellectual and industrial property rights related thereto.
“Registration” means all permits, licenses and registrations required under applicable law in order to prepare and upload Challenges for viewing and use by Users in the App.
“Athlete” means an App user that seeks to learn new skills and techniques.
“Trainer” means an App user that creates and uploads Challenges.
“User” means an Athlete or Trainer using the App, or both, as the context requires.
“User Information” means with respect to each User, (i) such User’s name and email address, (ii) such User’s image or likeness and biographical information, (iii) if User is a Trainer, the Challengers and descriptive text as provided by the User to Boosta, and (iv) any other data or Content entered or modified on the App by such User.
2. ABOUT THE APP. Boosta is a unique private training app centered around an interactive step-by-step learning system that provides a one-on-one connection between Athletes and Trainers. Boosta is a communication platform and Boosta does not directly deliver any training or feedback. All Challenges available on our App are performed directly by Trainers who operate independently of Boosta. Boosta is not liable or responsible for Challenges or for any information, feedback or materials provided by Trainers and does not verify their compliance with applicable laws. In addition, Boosta does not guarantee the quality of the Challenges or training or feedback provided by Trainers.
3. REGISTRATION, ACCOUNT, AND COMMUNICATIONS. To access and use features of the App as an Athlete or Trainer, you will need to register for a Boosta account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your Credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the App on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the App or your account. You further understand and agree that Boosta may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your account.
By creating a Boosta account, you also consent to receive electronic communications from Boosta, including through email or by posting notices to the App. These communications may include notices about your account and transactional information. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of all electronic communications you receive from us. We may also send you promotional communications by email that we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in such email.
4. LICENSE TO USE OUR APP. When you use the App as an Athlete, Boosta grants you subject to your compliance with the terms of this Agreement, a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to use the App and/or Content for your personal and noncommercial use, solely as expressly permitted by the terms of this Agreement and subject to all the terms and conditions of this Agreement and all applicable intellectual property laws. When you use the App as a Trainer, Boosta grants you subject to your compliance with the terms of this Agreement, a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the App and/or Content to post your Challenges and manage your transactions with Athletes, solely as expressly permitted by the terms of this Agreement and subject to all the terms and conditions of this Agreement and all applicable intellectual property laws. The App and Content may not be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on the App and/or Content should be interpreted as granting to you any license or right to use any of the Content (other than as provided herein) and/or third party proprietary content on the App without the express written permission of Boosta or the appropriate third party owner, as applicable. Any rights not expressly granted herein are reserved by Boosta and Boosta’s licensors.
You may not rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the App, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the App. You are not authorized to download any content from the App and if you do, Boosta will not be responsible in any way for any damage to your computer system or loss of data that results from such download.
Notwithstanding anything to the contrary herein, all rights not specifically granted in the licenses set forth above shall be reserved and remain always with Boosta.
5. LICENSE TO USE YOUR USER INFORMATION. You hereby grant to Boosta an irrevocable, non-exclusive, non-transferable license to copy, use, publicly display and transmit your User Information only from and via the App in connection with the use of the App and the operation of Boosta’s business and in all forms of media now known or hereafter invented without notification to and/or approval by you. If you are a Trainer, you further grant Boosta a license to use your username and/or other user profile information, to attribute your User Information to you, without notification to and/or approval by you. Further, if you provide any suggestions, input, or other feedback relating to the App, Boosta shall have the right to freely and fully exercise and exploit such suggestions, input, or other feedback relating to the App in connection with our business without notice to, approval by, or compensation to you. Accordingly, you hereby grant Boosta a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use your suggestions, input, or other feedback relating to the App for any purpose. You represent and warrant that you are the owner of and/or otherwise have the right to provide all your User Information made available to us through the App, including, but not limited to, all videos, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise disseminate in connection with your use of the App.
You agree that we Boosta may act in reliance upon any User Information you provide. We will not be required to inquire into the truth or evaluate the merits of any User Information or any statement or representation contained in any Challenges or Challenge performance you provide. You will take all reasonable precautions to prevent unauthorized use of your Credentials. Any person using your Credential is conclusively deemed to have actual authority to use the App, and, accordingly all such uses of the App using your Credential are hereby authorized by you.
6. TRADEMARKS. “Boosta,” the Boosta logo, and any other Boosta trademarks or service names, logos or slogans that may appear on the App are trademarks of Boosta and may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, the look and feel of the App, including, without limitation, all custom graphics, button icons and presentation of User Information, constitute the service mark, trademark or trade dress of Boosta and may not be copied, imitated or used, in whole or in part, without our prior written permission.
7. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY. Unless otherwise indicated in writing by us, the App and all Content, and all modifications and derivative works thereof, and all Intellectual Property Rights related thereto are the property of Boosta or our licensors (including Users with respect to their specific User Information), as the case may be. The copying, redistribution, use or publication by you of any of the Content (other than your specific User Information) or any part of the App, is strictly prohibited. You shall not challenge, contest or otherwise impair Boosta’s ownership of the App or the validity or enforceability of Boosta’s Intellectual Property Rights related thereto.
When you are acting as a Trainer, you agree that any Athlete’s User Information provided to you incident to such Athlete’s performance of your Challenges shall be Boosta’s Confidential Information and the sole property of Boosta. You will respect and protect this confidentiality as required herein. You will not sell, rent or otherwise transfer such information or the right to use such information. You will use the information only for evaluating the Athlete’s performance of the Challenge and for providing feedback to the Athlete. You will not mail to or otherwise solicit or initiate contact of any kind outside of the App without Boosta’s specific permission.
When you are acting as a Trainer, Boosta may disclose to you Boosta’s Confidential Information. You shall not in any way disclose, copy, modify, distribute or otherwise transfer Boosta’s Confidential Information, or any part thereof, to any other person or entity at any time. You shall use Boosta’s Confidential Information only to properly fulfill your obligations as a Trainer hereunder, and not for any other purpose. Boosta does not represent that Boosta’s Confidential Information we may disclose hereunder will meet your requirements or that Boosta’s Confidential Information when combined with other information or when used in a particular way by you will be sufficient or suitable for your purpose. Upon our request, you shall immediately return to us the originals and all copies of any of Boosta’s Confidential Information. Notwithstanding anything else herein, you may disclose Boosta’s Confidential Information to the extent required by applicable law, provided you give us reasonable advance notice of such disclosure. For the avoidance of doubt, Boosta’s Confidential Information shall include the User Information.
You acknowledge that your breach of confidentiality may result in irreparable and continuing damage to Boosta for which there will be no adequate remedy by law, and you agree that in the event of such breach we will be entitled to injunctive relief and other equitable remedies in addition to all other remedies available.
8. USER CONDUCT. You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the App. You agree that you will abide by this Agreement and will not:
• Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
• Use the App in any communication of a sexual nature or in any communication that is offensive or otherwise unwanted by the recipient;
• Use or attempt to use another User’s account without authorization from such User and Boosta;
• Use the App in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the App or that could damage, disable, overburden or impair the functioning of the App in any manner;
• Reverse engineer any aspect of the App or do anything that might discover source code or bypass or circumvent measures employed to secure access and integrity of the App;
• Attempt to access any feature or area of the App that you are not authorized to access;
• Develop any third party applications that interact with User Information or the App without our prior written consent;
• Use the App for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
By transmitting User Information, you agree to follow the standards of conduct below, and any additional standards that may be stated on the App. Boosta expect your cooperation in upholding our standards. You are responsible for all of your User Information. You agree not to provide any User Information that:
• Is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable; has a commercial, political, or religious purpose;
• Is false, misleading, and/or not written in good faith;
• Creates a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication;
• Infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
• Is illegal and/or promotes illegal activity;
• contains unauthorized advertising and/or solicits users to a business; and/or
• Is intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Content on the App.
Boosta cannot monitor use of the App or interactions between our Users and we rely on Users to provide us notice of any User Information or conduct on our App that violates our standards or this Agreement. If any User Information or conduct on our App violates our standards, or any other terms and conditions of this Agreement, or interferes with other User’s enjoyment of the Content or our App, or is inappropriate in our judgment, we reserve the right, in our sole discretion, to change, delete or remove, in part or in full, any such User Information or Content, and we further reserve the right to terminate or suspend access to the affected portion of the App. Boosta will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with User Information.
You agree to comply with the above user conduct, and agree not assist or permit any person in engaging in any conduct that does not comply with the above user conduct. Further, you agree that the consequences of commercial use or re-publication of Content from the App or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that Boosta will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
You agree that your correspondence to or transactions with other Users of the App, whether as a Trainer or Athlete are solely between you and the other User. Boosta shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such transaction or activity. BOOSTA EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES AS TO ANY CHALLENGE, CONTENT ON THE APP, OR ANY OTHER ACTIVITY ARISING FROM OR RELATED TO THE APP. Boosta is not involved in any activity or transaction between Users.
9. PROVISIONS APPLICABLE TO TRAINERS. When you are acting as a Trainer, you agree:
• to use the App only in accordance with applicable law, including, but not limited to, all applicable Registrations and related requirements;
• to obtain, and maintain in good standing throughout the term of this Agreement, all Registrations prior to and as a condition to use of the App.
• not to modify, sublicense, distribute, market, transfer, reverse engineer, reverse compile or make any copies of any element of the App.
• That you are solely responsible for any and all acts and omissions that occur under your account, with respect to your Challenges and that you shall not to engage in unacceptable use of the App.
We may, without notice, terminate your access to the App or take other actions as are reasonably necessary to comply with legal requirements.
You shall be exclusively responsible for (i) all operations of your business in full compliance with applicable laws, including, but not limited to, all applicable Registrations and related requirements; (ii) the supervision, management, and control of your use of the App, including, but not limited to, implementing procedures sufficient to satisfy your obligations for security under this Agreement to prevent misuse, unauthorized copying, modification, or disclosure of Credentials. BOOSTA DOES NOT PROTECT YOU FROM UNAUTHORIZED USE OF YOUR CREDENTIALS.
You shall immediately notify us if you become aware of any other person using your Credentials or of any breach of a security measure established by us or you. If we are so informed or if we otherwise reasonably believe that you, or any other person has breached a security measure established by us or you, we have the right, in our sole discretion, to restrict your access to the App until you can establish to our satisfaction that you have addressed the cause(s) of the security breach. We may terminate or restrict the use of any individual Credential for the same reasons. Notwithstanding anything else to the contrary, we have no duty to take any action upon your notice under this Section or our becoming aware of a breach of a security measure, and you shall solely be responsible for any such breaches regardless of any act or failure to act by us.
You shall observe and comply with all requirements of your Registration(s) and all other applicable laws. Your failure to comply with all requirements of your Registration(s) and all other applicable laws shall be deemed to be a material breach of this Agreement and Boosta shall have the right to immediately terminate this Agreement and your access to and use of the App upon confirmation of such failure.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU SHALL SOLELY BEAR ALL LIABILITIES, DAMAGES AND LOSSES ARISING FROM ANY DISPLAY, PUBLICATION AND USE OF THE CHALLENGES YOU POST THROUGH THE APP.
11. WARRANTIES. You hereby represent and warrants to Boosta that: (i) you have the right and authority to enter into and perform your obligations under this Agreement; and (ii) you have the right to grant the licenses set forth above; and (iii) you own all of your User Information.
If you are acting as a Trainer, you additionally represent and warrant to Boosta that you have all necessary rights or releases to use in your User Content any audiovisual works, photographs, drawings and images, performances, and any name, likeness and statement used on the App.
12. WARRANTY DISCLAIMER. THE APP AND ALL PARTS THEREOF ARE PROVIDED BY BOOSTA ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. USE OF THE APP IS AT YOUR SOLE RISK AND NEITHER BOOSTA NOR ANY OF ITS LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. NEITHER BOOSTA NOR ANY OF ITS LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AND BOOSTA HEREBY DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS, SUPPLIERS, EMPLOYEES AND AGENTS, ANY AND ALL WARRANTIES REGARDING THE APP, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BOOSTA MAKES NO WARRANTY REGARDING ANY USER INFORMATION ACCESSED THROUGH THE APP. BOOSTA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP, CONTENT, AND/OR ANY OTHER CONTENT ON THE APP IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY OF ANY CHALLENGES. YOU (AND NOT BOOSTA) ASSUME THE ENTIRE RISK OF PARTICIPATING IN ANY CHALLENGE OR IN PROVIDING ANY OF YOUR USER INFORMATION OR OTHERWISE RELATING TO YOUR USE OF THE APP, CONTENT, AND/OR OTHER CONTENT ON THE APP. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL BOOSTA BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF BOOSTA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, CHALLENGES OR OTHER CONTENT PROVIDED ON OR THROUGH THE APP. BOOSTA ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR IOS DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OF THE APP. BOOSTA ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION OR CONTENT AVAILABLE ON OR THROUGH THE APP, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL BOOSTA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED $100. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
14. TERMINATION AND VIOLATIONS OF THE AGREEMENT. Your rights under this Agreement will terminate automatically without notice if you fail to comply with any provision of this Agreement. Further, Boosta reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the App and/or Challenges or other Content offered on or through the App (or any part thereof). Boosta will have no liability whatsoever on account of any change to the App or any suspension or termination of your access to or use of the App. You may terminate this Agreement at any time by closing your account and ceasing use of the App.
Upon termination of this Agreement for any reason or no reason: (a) your right to use the App will terminate and you must immediately cease all use of the App; and (b) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement.
Boosta reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including, without limitation, the right to block use of the App from a particular device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
15. MISCELLANEOUS PROVISIONS. The relationship between you and Boosta is only that of independent contractors. Neither of us is the agent or legal representative of the other, and neither of us has the right or authority to bind the other party in any way. This Agreement creates no relationship as partners or a joint venture, and creates no pooling arrangement.
You have no right to assign, delegate, transfer or otherwise encumber this Agreement or any portion thereof without Boosta’s prior written consent.
Boosta shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to you by email at the address provided to Boosta by you or by posting the changes within the App. Your use of the App after the date such amended terms are delivered to you shall be deemed to constitute acceptance of such amended terms.
If any provision, or part thereof, of this Agreement is judicially declared invalid, void or unenforceable, each and every other provision, or part thereof, nevertheless shall continue in full force and effect, and the unenforceable provision shall be changed or interpreted so as best to accomplish the objectives and intent of such provision within the limits of applicable law.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreements between the parties regarding the subject matter hereof, and supersede all prior or contemporaneous understandings or agreements, whether oral or written regarding the subject matter hereof.
17. GOVERNING LAW. This Agreement shall be interpreted and enforced according to the laws of the State of California, without application of its conflicts or choice of law rules. This Agreement shall be deemed to be performed in Los Angeles County, California. Both parties irrevocably submit to the jurisdiction of the state or federal courts located in Los Angeles County, California, for any action or proceeding regarding this Agreement, and both parties waive any right to object to the jurisdiction or venue of the courts in Los Angeles County, California. The failure of either party to enforce any of its rights hereunder or at law shall not be deemed a waiver or a continuing waiver of any of its rights or remedies against the other party, unless such failure or waiver is in writing. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled.
18. CONTACT. If you have any questions regarding this Agreement, please contact us at [email protected].
19. RIGHTS AND REMEDIES NOT EXCLUSIVE. No right or remedy available to Boosta under this Agreement shall be exclusive of any other right or remedy available to Boosta pursuant to applicable law, and all rights or remedies available to Boosta under this Agreement or applicable law shall be cumulative and in addition to every other right or remedy available to Boosta.
20. CORRECTIONS. Occasionally there may be information on the App that contains typographical errors, inaccuracies or omissions. Boosta reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
21. INFORMATION CONTROL. Boosta does not control the information provided by other users and made available through the App. Please use caution, common sense, and practice safe trading when using the App.
22. HEADINGS. The headings used in this Agreement are for convenience only and shall not affect the interpretation or construction of this Agreement.