Beyond the Whiteboard
Mobile Application and Website User Agreement
Last Updated: July 2, 2021
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, a California corporation ("BTWB," "we" or "us"). This Agreement governs (1) your use, whether you are an individual or an organization, of BTWB's website(s) located at https://beyondthewhiteboard.com and https://btwb.com (collectively the "Website") and/or BTWB's mobile software applications on the Android and iOS platforms, made available to the public under the names Beyond the Whiteboard and btwb (the "Mobile Apps") including all related documentation that BTWB makes available within the Service (the "Documentation," and together with the Website and the Mobile Apps, the "Service"), as well as (2) your participation in any Challenges (defined below).
BY VISITING, READING, REGISTERING FOR, INSTALLING OR USING THE SERVICE OR PARTICIPATING IN A CHALLENGE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT AND ARE LEGALLY BOUND BY ITS TERMS; (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, AND DELETE EACH MOBILE APP FROM YOUR MOBILE DEVICE.
The Service is available for use:
- By individuals on their own behalf in fitness activity tracking and education ("Individuals"); and
- By gyms, fitness studios and other establishments that use the Service to present information to and coordinate activities with Individuals ("Gyms"). The Service may offer you the opportunity to identify yourself as a representative of one or more Gyms (for example, as an owner of that Gym). Each Gym that you identify as one that you represent in response to such prompts in the Service is identified in this Agreement as your "Linked Gym."
If you identify yourself to us as a representative of a Linked Gym, then by agreeing to this Agreement you are agreeing to it on your own behalf as an Individual as well as on behalf of any Linked Gym and the licenses expressly stated in this Agreement extend to each Linked Gym. If you do not inform us that you are a representative of any Gyms, then you are agreeing to this Agreement on your own behalf alone.
BTWB from time to time collaborates with Gyms to present live competitions between individuals, which may be conducted either in-person or via remote technology ("Challenges"). You are welcome to participate in any Challenge provided that you meet any eligibility criteria that BTWB or a Gym may establish for that Challenge, and if you do participate, you hereby agree that you do so pursuant to this Agreement and any separate terms, conditions or rules for that Challenge.
Some Service features allow you and other users to post, submit, publish, display, link or transmit to other users or other persons ("post") content, images or other materials (collectively, "User Content") on or through the Service. All User Content that you post to the Service on your own behalf as an Individual is referred to in this Agreement as "Your Content." All User Content that you (or any other person at your request or with your authorization) post in the Service on behalf of a Linked Gym is referred to in this Agreement as "Gym Content."
The Service publishes content and other materials that includes User Content as well as WODs (workouts), information and other content from BTWB and from third parties (all of the foregoing collectively, "Content").
BTWB's Licenses to You
Subject to this Agreement and the Documentation, BTWB hereby grants you throughout the Term a limited, non-exclusive, and nontransferable license to (a) download, install, and use the Mobile Apps for your personal, non-commercial use on mobile devices that you own or control ("Mobile Devices"); and (b) access, stream and download the Content and use the Content on each Mobile Device.
Subject to this Agreement and the Documentation, to the extent you have told us that you represent Linked Gyms, BTWB hereby grants each such Linked Gym throughout the Term a limited, non-exclusive, and nontransferable license to (a) download, install, and use the Service for that Linked Gym's for its own internal business purposes and to communicate with Individuals who have a business relationship with that Linked Gym and (b) access, stream and download the Content within that Linked Gym's physical premises and on each Mobile Device owned or leased by that Linked Gym.
You will not:
- copy, modify, translate, adapt, or otherwise create derivative works of or improvements to the Service;
- 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;
- 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 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.
Your Licenses to BTWB and to Gyms; Deletion of Your Content
You hereby grant BTWB and its affiliates and service providers, and each of our and their licensees, successors and assigns, a non-exclusive, transferable, sub-licensable, royalty-free and worldwide license, irrevocable except as this Agreement expressly provides, to host, use, distribute, modify, run, copy, publicly perform and display and create derivative works of Your Content for any purpose. This means that we may, for example, display Your Content to Gyms and to other Individuals who use the Service. Please bear this in mind when you post Your Content, especially when you post Your Content that disclosed your name, photograph or other identifying information.
The Service may give you the option to delete Your Content or portions of it from the Service after you post it. If so, then deleting Your Content makes it invisible to third parties but BTWB’s systems may retain Your Content temporarily or permanently after its deletion.
Your Representations and Warranties
You represent and warrant that you own or control all rights in and to Your Content, you have the right to grant the license granted above to us and our licensees, successors and assigns, and all of Your Content will comply with this Agreement.
You are responsible for all of Your Content that 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.
You represent and warrant that if you participate in a Challenge, you have determined in consultation with a physician that you are in sufficiently good health to participate.
Code of Conduct
You will not at any time treat any other Individual, Gym or other user of the Service or other participant in a Challenge in a manner that BTWB in its sole discretion deems to be offensive, harassing, stalking, disparaging, illegal, deceptive or objectionable.
Your Content may not (a) contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable as we believe in our sole discretion; (b) impersonate any person or mispresent your identity; or (c) except as we may agree with you in writing, involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
Payments and Taxes
You agree to make full payment to us, in the manners specified in the Service itself, for your usage of the Service and the licenses contained in this Agreement. You agree that the Service is provided as a subscription service and that you are agreeing to pay for it throughout the term of this Agreement regardless of the extent to which you actually choose to use it during the term. Company offers no refunds for payments once made except as this Agreement provides. As between you and BTWB, you are solely responsible for any tax obligations that you may incur (individually and on behalf of your associated Gyms, if you are associated with a Gym) in connection with 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, is this Agreement. BTWB 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.
The terms "BTWB" and "Beyond the Whiteboard," the BTWB logo(s) and all related names, logos, product and service names, designs, and slogans are trademarks of BTWB or its affiliates or licensors. You must not use such marks without prior written permission of BTWB. All other names, logos, product and service names, designs, and slogans associated with the Service are the trademarks of their respective owners.
Personally Identifiable Information
BTWB 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 Service features and functionality. You agree that BTWB 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.
You will promptly download and install all Updates and acknowledge and acknowledge that the Service or portions thereof may not properly operate if you fail to do so. All Updates will be deemed part of the Service and be subject to this Agreement.
We have agreements with other organizations ("Partner(s)") under which some or all of our users may use the Service to attempt to qualify for fitness competitions that Partners operate ("Partner Event(s)"). You are generally not required to do 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 this Agreement begins when you first register for, install or use the Service and will continue in effect until terminated by you or BTWB as this Agreement provides. You may terminate this Agreement at any time by deleting the Service and all copies of it from your Mobile Devices. BTWB 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.
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 Devices and account. Termination will not limit any of BTWB's rights or remedies at law or in equity.
If BTWB terminates this Agreement because you have breached it, or because a third person has used your BTWB account in a manner that violates this Agreement, 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.
DISCLAIMER OF WARRANTIES
THE SERVICE AND CONTENT AND EACH CHALLENGE ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BTWB, 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,
- BTWB 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, 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, BTWB 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.
LIMITATIONS AND EXCLUSIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BTWB 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 ACTIONS TAKEN BASED ON THE CONTENT 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 IN THE YEAR PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. WITHOUT LIMITING THE FOREGOING, IF YOU USE THE SERVICE IN CONNECTION WITH A PARTNER EVENT, IN NO EVENT WILL BTWB 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.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BTWB OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR ANY GYM THAT PRESENTS OR PARTICIPATES IN A CHALLENGE IN WHICH YOU PARTICIPATE, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR PARTICIPATION IN CHALLENGES FOR (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED $5,000.00.
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 BTWB 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. BTWB DOES NOT PROVIDE MEDICAL OR NUTRITIONAL ADVICE OR TREATMENT.
You agree to indemnify, defend, and hold harmless BTWB and its Affiliates, and each of their officers, directors, employees, agents, 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, your breach of this Agreement or your participation in a Partner Event. If you represent a Gym, then this Indemnification Section applies equally to that Gym.
The Service may be subject to U.S. export control laws, including the U.S. 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 U.S.
If any provision of this Agreement is held by a court of competent jurisdiction to be 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.
This Agreement is governed by California 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.
This Agreement is the entire agreement between you and BTWB with respect to the Service and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Service.
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 this Agreement
We may amend this Agreement at any time, in our sole discretion. Any such amendment will be effective after we send you written notice of the amended agreement, show you a banner popup notice in the Service 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.
Reporting Claims of Copyright Infringement
BTWB takes claims of copyright infringement seriously. BTWB will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any Content in the Service infringes your copyright, you may request removal of that Content by submitting written notification to BTWB at the address below. In accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice ("DMCA Notice") must include:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works within the Service, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate the material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that the use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
If you knowingly materially misrepresent that material or activity on the Service is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA. It is BTWB's policy, in appropriate circumstances, to disable and/or terminate accounts of users who are repeat infringers.
Terms Applicable to Apple Device Users
If you download the Service from the Apple Store to an Apple-branded Mobile Device, the terms in this section apply to you in addition to the other provisions in this Agreement.
Apple is not a party to this Agreement. BTWB, not Apple, is solely responsible for the Service and the Content. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Service.
The licenses in this Agreement are limited to Apple-branded products that you own or control and are subject to the Usage Rules in the Apple App Store Terms of Service, except that the Service may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO WARRANTY OBLIGATIONS WHATSOEVER WITH RESPECT TO THE SERVICE AND ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY APPLICABLE TO BTWB WILL BE BTWB'S SOLE RESPONSIBILITY. TO THE EXTENT THAT ANY WARRANTY MAY APPLY TO YOU NOTWITHSTANDING THIS AGREEMENT'S EXPRESS PROVISIONS AND THE SERVICE FAILS TO CONFORM TO THAT WARRANTY, YOU MAY NOTIFY APPLE AND APPLE WILL REFUND ANY PURCHASE PRICE THAT YOU MAY HAVE PAID TO DOWNLOAD THE APPLICATION.
YOU ACKNOWLEDGE THAT BTWB, NOT APPLE, IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS BY YOU OR BY ANY THIRD PARTY RELATING TO THE SERVICE OR TO YOUR POSSESSION OR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION (I) PRODUCTION LIABILITY CLAIMS, (II) ANY CLAIM THAT THE SERVICE FAILS TO CONFORM TO APPLICABLE LEGAL OR REGULATORY REQUIREMENTS AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION, PRIVACY OR SIMILAR LAWS, TO THE EXTENT THAT ANY OF THE FOREGOING CLAIMS ARE PERMITTED UNDER THIS AGREEMENT.
You acknowledge that in the event of a third-party claim that the Service or your possession or use of the Service infringes on that third party's intellectual property rights, BTWB, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such claim.
You acknowledge that Apple and its subsidiaries are third-party beneficiaries of this Agreement and that upon your acceptance of this Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary.
You represent and warrant that you are not located in a country that is subject to a United States government embargo or which the United States government has designed as a "terrorist supporting" country and that you are not listed on any United States government list of prohibited or restricted parties.
The Service is offered by Badpopcorn, Inc. d/b/a Beyond the Whiteboard. With any questions, complaints or claims, please contact firstname.lastname@example.org.