Mobile Terms of Use - Boostly

Boostly, Inc.

Mobile End User Terms

These Mobile End User Terms (these “ Terms”) are between Boostly, Inc. (“ Boostly”) and you. These Terms set forth the conditions pursuant to which you may access and use Boostly’s platform (the “ Service”) that Boostly makes available to the entity through which you receive access to the Service (the “ Participating Entity”). You and Boostly are each individually a “ Party” and, together, the “ Parties.”

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY TEXTING A KEYWORD TO A PHONE NUMBER, REPLYING TO AN OPT-IN CONFIRMATION MESSAGE, ENTERING YOUR PHONE NUMBER ON A DIGITAL KIOSK, WEB FORM, OR OTHER SOURCE, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION OF YOUR ACCESS TO OR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE BOOSTLY’S PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE CONSTITUTES AN AGREEMENT BY YOU TO BE BOUND BY THESE TERMS.

CONSUMER OPT-IN
Boostly - The Service allows consumers to opt-in and receive text and picture messaging alerts (recurring message frequency may vary based on the campaign you’ve opted into - message & data rates may apply) that include alerts, information, offers, and rewards by users affirmatively opting into the Service, such as through confirming your opt-in by texting a keyword to a phone number, replying to an opt-in confirmation message or entering your phone number on a digital kiosk, web form, or other source.

Your phone number will NOT be shared with any third parties for marketing purposes.

To receive information about the service from your cellular phone you can send HELP to the MESSAGING CODE, email support@boostly.com, or call 800-720-7738.

CONSUMER OPT-OUT
To Opt-Out (discontinue service), text “STOP” to the MESSAGING CODE from your mobile device. You will not receive any additional mobile messages other than a mobile message to confirm you’ve opted out. You may also Opt-out by texting “QUIT”, “END”, “CANCEL”, “UNSUBSCRIBE”, or “STOP ALL” to any mobile message you receive.

HELP
To get help, you may send or reply ‘HELP’ to the MESSAGING CODE you received the mobile message from.

Email: support@boostly.com
Phone: 800-720-7738
Message and data rates may also apply according to your specific cellular plan or prepaid conditions.

CONSUMER PRIVACY
We will not share or use your mobile number for any other purpose.

CONSUMER FEES
Our service never charges consumers to ‘receive’ or ‘reply to’ mobile messages. However, depending on your mobile service plan, message & data rates may apply.

DISALLOWED CONTENT
The following content categories are considered deceitful and nuisance campaigns which may result in high volumes of SPAM complaints on the carrier networks. Due to these issues, we do NOT support any campaign under the following categories, regardless of any prior approval.

WARRANTY
Boostly will not be liable for any delays in the receipt of any mobile messages connected with this Service. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator.

PRIVACY POLICY
Boostly respects your privacy. We will only process your phone number and other personal information to provide our Services to our customers (e.g., your favorite restaurant) in accordance with our Data Processing Addendum, and where applicable, our Privacy Policy.

ADDITIONAL TERMS OF SERVICE:
By opting in and choosing to engage in any one of our Services or other mobile messaging campaigns you are agreeing to the following Terms of Service:

  1. Restrictions. You may not share your access to the Service with any third party or enable any other person to access the Service. You will not, and will not attempt to: (a) use the Service to develop (or to facilitate the development of) a similar or competing product or service; (b) publish benchmarks or performance information about the Service; (c) use the Service in a manner that violates any law; (d) misuse, abuse, or circumvent any security features of, the Service; or (e) decompile or reverse engineer any software included in or used to provide the Service.

  2. Term and Termination. These Terms are in effect at all times that you access or use the Service. Boostly may immediately terminate these Terms, and terminate or suspend your access to the Service, at any time and for any reason, including if: (a) you violate any provision of these Terms; or (b) Boostly terminates its agreement with the Participating Entity. Sections 2 through 4 and 6 through 10 will survive termination.

  3. Intellectual Property. As between you and Boostly, except for the licenses expressly granted in these Terms, (a) you retain all right, title, and interest (including all intellectual property rights) in and to the data you provide to, or otherwise make available to Boostly or the Service (“ Data”); and (b) Boostly retains all right, title and interest (including all intellectual property rights), in and to the Service. You hereby (i) authorize Boostly to share without restriction your Data with the applicable Participating Entity and (ii) grant Boostly a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, analyze, aggregate, and otherwise exploit Data for those purposes authorized under Boostly’s agreement with the Participating Entity. Boostly will not disclose Data to any third party other than to the Participating Entity or as otherwise necessary to provide the Service or comply with applicable laws.

  4. Feedback. If you choose to provide observations or suggestions regarding problems with or proposed modifications or improvements to the Service (“ Feedback”), then you do so on a non-confidential basis and you hereby grant Boostly an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose. Boostly will have no obligation to provide you with attribution for any Feedback you provide.

  5. Third-Party Platforms. The Service may include features that integrate with, or that may be used with, third-party platforms, services, add-ons, or products that are not provided by Boostly (“ Third-Party Platforms”). Your access to and use of Third-Party Platforms is subject to your agreement with the relevant provider and not these Terms. Boostly does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Platforms or their providers use Data.

  6. Modifications

    • 6.1 Modification of the Service. Boostly reserves the right to modify or discontinue all or part of the Service at any time, temporarily or permanently, without notice to you. Boostly will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
    • 6.2 Modification of these Terms. Boostly may modify or amend these Terms and has the right to enforce such modified Terms. Except as otherwise expressly set forth in these Terms, any amendments, modifications, or supplements to these Terms must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Boostly.

  7. Warranties and Disclaimer. BOOSTLY DOES NOT CONTROL, AND SHALL HAVE NO LIABILITY FOR ANY ACT OR OMISSION OF, ANY PARTICIPATING ENTITY, INCLUDING A PARTICIPATING ENTITY’S USE OF ANY DATA. WITHOUT LIMITING THE FOREGOING, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND BOOSTLY HEREBY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BOOSTLY DOES NOT GUARANTEE THAT YOUR ACCESS TO THE SERVICE WILL BE UNINTERRUPTED. BOOSTLY IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA. THE DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. BOOSTLY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT BOOSTLY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR THE CONSEQUENCES OF YOUR DECISION TO AUTHORIZE BOOSTLY TO SHARE YOUR DATA WITH A PARTICIPATING ENTITY.

  8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) BOOSTLY WILL NOT BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF DATA, AND (B) BOOSTLY’S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THESE TERMS WILL NOT EXCEED $10 USD. THE FOREGOING LIMITATIONS APPLY WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

  9. Dispute Resolution and Arbitration

    • 9.1 Generally. Except as described in Section 9.2 (Exceptions) and 9.3 (Opt-Out), you and Boostly agree that every dispute arising out of or related to these Terms, the Service, or communications from Boostly will be resolved through binding, individual arbitration. This agreement to arbitrate disputes includes all claims whether based on contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.
    • 9.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either Party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    • 9.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 9 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms (unless a longer period is required by applicable law) by sending a letter by certified U.S. Mail
      to Boostly, Attention: Legal Department – Arbitration Opt-Out, 1557 W Innovation Way, Ste 200, Lehi, UT 84043 that specifies: your full legal name, the email address and/or phone number associated with your account on the Service, and a statement that you wish to opt out of arbitration (“ Opt-Out Notice”).
    • 9.4 Arbitrator. This arbitration agreement is subject to the Federal Arbitration Act (“ FAA”) and will be administered by the JAMS under its rules applicable to consumer disputes (collectively, “ JAMS Rules”) as modified by these Terms.

  10. Miscellaneous. These Terms constitute the entire agreement between you and Boostly with respect to your use of the Service. Without limiting Section 9.9 (Enforceability), in the event that any portion of these Terms is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the Parties, and the rest of these Terms will remain in full force and effect. Waiver of any breach or provision of these Terms will not be construed as a waiver of any other breach or provision. You shall not assign these Terms or any of your rights or obligations under these Terms without Boostly’s prior written consent, and any such attempted assignment will be void and of no effect. Boostly may assign these Terms and all of its rights and obligations hereunder without limitation. These Terms will bind the Parties’ respective heirs, successors, and permitted assigns. These Terms, except to the extent otherwise indicated in Section 9 (Dispute Resolution and Arbitration), are governed by Delaware law. In the event a dispute arising out of or related to these Terms, the Service, or communications from Boostly is not resolved pursuant to Section 9 above, the federal and state courts having jurisdiction over Utah County, Utah, have exclusive jurisdiction over all actions arising hereunder.