Beyond the Whiteboard
Mobile Application and Website User Agreement
Last Updated: December 17, 2018
This Mobile Application and Website User Agreement ("Agreement") is a binding contract between you ("Licensee" or "you") and Badpopcorn, Inc. d/b/a Beyond the Whiteboard ("Company"). This Agreement governs your use, whether you are in an individual or an organization, of (1) Company's website(s) located at https://beyondthewhiteboard.com, https://btwb.com and https://crossfitbtwb.com (such websites collectively the "Website") and/or (2) Company’s mobile software applications on the Android and iOS platforms, made available to the public under the names Beyond The Whiteboard and btwb, including all related documentation (the Website, mobile applications and documentation together, the "Service"). The Service is licensed, not sold, to you.
BY VISITING, READING, REGISTERING FOR, INSTALLING OR USING THE SERVICE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT; AND (B) REPRESENT THAT YOU ARE AT LEAST EIGHTEEN YEARS OF AGE (OR ANY OLDER AGE IN YOUR JURISDICTION THAT MAY BE REQUIRED FOR YOU TO FORM A LEGALLY BINDING CONTRACT) OR THAT YOU ARE A PARENT OR LEGAL GUARDIAN OF A USER UNDER THAT AGE OF MAJORITY, CONSENTING TO THIS AGREEMENT ON THAT USER’S BEHALF AND TAKING RESPONSIBILITY FOR HIS OR HER USAGE OF THE SERVICE. NO PERSON UNDER THE AGE OF THIRTEEN MAY USE THE SERVICE IN ANY CASE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE.
License Restrictions. You will not:
- copy the Service (except as this Agreement expressly permits) or modify, translate, adapt, or otherwise create derivative works of or improvements to the Service, whether or not patentable;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any part of it;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service, or any features or functionality of the Service, to any third party for any reason, whether for compensation or otherwise;
- use the Service for any illegal purpose (including without limitation collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Service) or to harass or stalk any other user or any other person in a way that we in our sole discretion deem objectionable; or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Service.
- Reservation of Rights. You agree that the Service is provided under license, and not sold, to you. You do not acquire any ownership interest in the Service under this Agreement, or any other rights thereto other than to use the Service in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and will retain its entire right, title, and interest in and to the Service, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as this Agreement expressly grants to you.
- User Content. Some Service features ("Interactive Features") allow you and other users to post, submit, publish, display or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Content") on or through the Service.
- Updates. Company may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either (a) the Service will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
- Our Partners. We have agreements with other organizations ("Partners") under which some or all of our users may use the Service to attempt to qualify for fitness competitions that Partners operate ("Partner Events"). You are not required to use the Service in connection with any Partner Events. If you use the Service to qualify for a Partner Event, you agree to use the Service consistent with this Agreement, with the relevant Partner's policies and agreements, and with all written directions that we or the relevant Partner provide you regarding the Partner Event.
- Term and Termination. The term of Agreement commences when you register for, install or use the Service and will continue in effect until terminated by you or Company as this Agreement provides. You may terminate this Agreement at any time by deleting the Service and all copies of it from your Mobile Device. Company may terminate this Agreement at any time, for any reason, without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
Disclaimer of Warranties. THE SERVICE IS PROVIDED TO YOU "AS
IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO
THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN
BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE
SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES
THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE,
OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING,
- COMPANY PROVIDES NO WARRANTY, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, SERVICES, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, AND
- IF YOU USE THE SERVICE IN CONNECTION WITH A PARTNER EVENT, COMPANY MAKES NO WARRANTIES OF ANY TYPE REGARDING SUCH USE OF THE SERVICE OR REGARDING THE USE OF YOUR PII BY THE PARTNER EVENT'S ORGANIZER OR BY ANY OTHER ORGANIZATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE OR THE CONTENT AND SERVICES FOR (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE. WITHOUT LIMITING THE FOREGOING, IF YOU USE THE SERVICE IN CONNECTION WITH A PARTNER CROSSFIT EVENT, IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON FOR ANY PERSONAL INJURY TO YOU, FOR YOUR DEATH, OR FOR ANY LOST EARNINGS OR ANY OTHER DAMAGES OR HARM IN CONNECTION WITH THAT EVENT OR WITH YOUR USE OF OUR SERVICE IN RELATION TO THAT EVENT.
- Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Service or your breach of this Agreement, including but not limited to the content you submit or make available through this Service.
- Export Regulation. The Service may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Service to, or make the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You 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 Service available outside the US.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Choice of Law and Venue. This Agreement is governed by New York law without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Service must 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 Bernardino County or the nearest county thereto. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Changes to these Terms. We may amend this Agreement at any time, in our sole discretion. Any such amendment will be effective after, in our sole discretion, we send you written notice of the amended agreement, show you a popup notice on your Mobile Device, or simply post an updated agreement on the Website. By continuing to use the Service after any update to the Agreement, you consent to the amendment.
Any User Content you post to the Service will be considered non-confidential and non-proprietary. By providing any User Content on the Service, you grant us and our affiliates and service providers, and each of their and our licensees, successors and assigns, a non-exclusive, irrevocable, worldwide, fully paid up, royalty-free license right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose, including without limitation displaying your name, photograph (if you choose to upload one) and dates and details of your workouts within the Service to other users.
You represent and warrant that you own or control all rights in and to the User Content, you have the right to grant the license granted above to us and our licensees, successors and assigns, and all of your User Content will comply with these Terms.
You are responsible for any User Content you submit, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Service. All User Content must not (a) contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; (b) impersonate any person or mispresent your identify; or (d) involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
You will promptly download and install all Updates and acknowledge and agree that the Service or portions thereof may not properly operate if you fail to do so. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of this Agreement.
Upon termination for any reason, all rights that this Agreement grants to you will terminate and you must cease all use of the Service and delete all copies of the Service from your Mobile Device and account. Termination will not limit any of Company's rights or remedies at law or in equity.
If Company terminates this Agreement because you have breached it, you will not be entitled to any refund of any unused subscription fees or other payments that you may have made to us at the time of termination.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
ALL PHYSICAL FITNESS ACTIVITIES CARRY INHERENT RISK OF PERSONAL INJURY OR EVEN DEATH. DO NOT USE THE SERVICE OR TAKE ACTIONS BASED ON CONTENT PUBLISHED THROUGH THE SERVICE WITHOUT CONSULTING A PHYSICIAN. COMPANY DOES NOT PROVIDE MEDICAL OR NUTRITIONAL ADVICE OR TREATMENT.