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.
The mobile messaging service used by the Participating Entity to communicate with you is TCPA-compliant and requires human intervention for the Participating Entity’s mobile messages to be initiated, and does NOT have the capacity to randomly or sequentially generate telephone numbers. Thus, the Participating Entity’s mobile messages are NOT sent to you by an automatic telephone dialing system (“ATDS” or “autodialer”). Nevertheless, 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 and participating in the Service, you agree to receive marketing mobile messages from the Participating Entity. These messages may be made using an autodialer, and your consent is not a condition of purchase.
For standard-rate alerts, end users will opt-in by texting the keyword shown on the advertisement to the phone number (“MESSAGING CODE”) listed in the mobile message.
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 & dates 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.
High-Risk Financial
- Payday loans
- Non-direct lenders
- Debt collection
Debt Forgiveness
- Debt consolidation
- Debt reduction
- Credit repair programs
Illegal Substances
- Cannabis, CBD
- Illegal prescriptions
Work & Investment Opportunities
- Work from home programs
- Job Alerts from third party recruiting firms
- Risk investment opportunities
Other
- Gambling
- Any other illegal content
- Lead generation indicating the sharing of collected information with third parties
- Campaign types not in compliance with the recommendations or prohibited by the CTIA MESSAGING CODE Monitoring Handbook, Version 1.7 or later.
- Campaign types not in compliance with the recommendations of or prohibited by the CTIA Messaging Principles and Best Practices – 2019 version
* The wireless carriers are not liable for delayed or undelivered mobile messages
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.
Corporate Headquarters
Boostly
1557 W Innovation Way, Ste 200, Lehi, UT 84043
Tel: 800-720-7738
Email: support@boostly.com
www.boostly.com
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:
* IF WE DETERMINE THAT YOU ARE ABUSING THE SYSTEM, WE RESERVE THE SOLE RIGHT TO BLOCK YOU FROM RECEIVING MOBILE MESSAGES AND PARTICIPATING IN THE SERVICE AND MOBILE CAMPAIGNS *
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.
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.
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.
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.
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.
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.
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.
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.
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. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in 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. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. For clarity, jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of this binding arbitration agreement, and who are proper parties to the arbitration, shall be submitted to and ruled on by the arbitrator. The arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BOOSTLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
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 or by Federal Express 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”). Once Boostly receives your Opt-Out Notice, this Section 9 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 10 below. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
9.4 Arbitrator. This arbitration agreement, and any arbitration between us, 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. The FAA governs, among other things, the interpretation and enforcement of this Section 9 (Dispute Resolution and Arbitration) and all of its provisions, including, without limitation, the class action waiver. State arbitration laws do not govern in any respect. Further, you and Boostly each agree that these Terms evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Boostly.
9.5 Commencing Arbitration. Before initiating arbitration, a Party must first send a written notice of the dispute to the other Party by certified U.S. Mail or by Federal Express (signature required) or, only if that other Party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Boostly’s address for Notice of Arbitration is: Boostly, 1557 W Innovation Way, Ste 200, Lehi, UT 84043. The Notice of Arbitration must: (a) identify the full legal name and the email address and/or phone number or account number of the Party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The Parties will make good faith efforts to resolve the claim directly, but if the Parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Boostly may commence an arbitration proceeding. The payment of any fees will be decided by the applicable JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the applicable JAMS Rules and the other Party may seek reimbursement for any fees paid to JAMS.
9.6 Arbitration Proceedings. Any arbitration hearing will take place in Utah County, Utah unless we agree otherwise or, if the claim is for $10,000 USD or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Boostly must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
9.7 Arbitration Relief. Except as provided in Section 9.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Boostly before an arbitrator was selected, Boostly will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) $10,000 USD. The arbitrator’s award shall be final and binding on all Parties, except (i) for judicial review expressly permitted by law or (ii) if the arbitrator’s award includes an award of injunctive relief against a Party, in which case that Party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
9.8 No Class Actions. YOU AND BOOSTLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Boostly agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
9.9 Enforceability. If Section 9.8 (No Class Actions) or the entirety of this Section 9 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Boostly timely receives an Opt-Out Notice from you, then the entirety of this Section 9 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 10 (Miscellaneous) will govern any action arising out of or related to these Terms.
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 (Dispute Resolution and Arbitration) above, the federal and state courts having jurisdiction over Utah County, Utah, have exclusive jurisdiction over all actions arising hereunder.