Last updated: October 5, 2020
These Terms of Service ("Terms") govern your access or use of the applications, websites, content, products, and services (the "Services," as more fully defined below in Section 3) made available by Boomr, Inc. ("Boomr"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BOOMR.
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Boomr may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Boomr may amend the Terms from time to time. Amendments will be effective upon Boomr's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.
The Services include mobile applications and related services (each, an "Application"), which enable those employing or contracting with others to provide services ("Employers") and those providing services ("Employees") to track shifts, hours worked, location and other data related to employment or consulting (the "Data").
The Applications use geo-location to help deliver the Services, and by using the Services, you agree to such location features. You also agree that Boomr may use the Data for the purpose of delivering the Services, and may share such Data with third parties providing accounting, billing and other services to Employers as part of making payments to Employees. While Boomr is careful to accurately collect and report Data, Employees should verify that the Data is accurate when receiving payment from Employers.
License. Subject to your compliance with these Terms, Boomr grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services.
Proprietary Rights. As between you and Boomr, Boomr is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the website, and is the copyright owner and/or licensee of the content and/or information on the website, unless otherwise indicated. Except as provided herein, use of the website does not grant you a license to any content, features or materials you may access on the website, and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such content, features or materials, in whole or in part, or otherwise exploit any of the content. Any commercial use of the website is strictly prohibited, except as allowed herein or otherwise approved by Boomr. You may not download or save a copy of any of the content or screens for any purpose, and no material from the website may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the website or as otherwise provided by Boomr. If you make use of the website, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Boomr does not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the website.
Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Boomr; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Boomr certain personal information, such as your name, email address and mobile phone number. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.
If you are an Employer, you understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). Boomr will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services.
All Charges and payments will be enabled by Boomr using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Boomr may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by Boomr.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." BOOMR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BOOMR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE DATA, SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
BOOMR AND ITS AFFILIATES SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BOOMR, EVEN IF BOOMR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF BOOMR TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TERMS OR YOUR USE OF THE SERVICES EXCEED, IN THE AGGREGATE, $100.00.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, BOOMR’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You release Boomr, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to the Services, materials and function related thereto. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
If You are an Employer: (1) You remain solely responsible for compliance with all applicable labor and employment laws; (2)You will ensure that Your use of the Services is consistent with applicable laws; (3) You will not use the Services in a way that is inconsistent with applicable laws; (4) You will ensure Your employees are paid correctly for all hours worked; and (5) You will review all output of the Services to ensure employees are paid properly. Boomr does not provide legal advice and the Services are not a replacement for legal advice.
You agree to indemnify and hold Boomr and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services, and (ii) your breach or violation of any of these Terms.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Any claim or cause of action you may have with respect to Boomr or the Services must be commenced within one (1) year after the claim or cause of action arose.
Arbitration Agreement. PLEASE READ THE FOLLOWING ARBITRATION TERMS CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BOOMR AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM IT. Both you and Boomr acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Boomr’s officers, directors, employees and independent contractors (collectively, “Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of JAMS/Endispute, LLC (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Boomr will pay all arbitration fees for claims less than $75,000. Boomr will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous
(c) Small Claims Court. Either you or Boomr may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND BOOMR WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE AND/OR JURY. You and Boomr are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Boomr over whether to vacate or enforce an arbitration award, YOU AND BOOMR WAIVE ALL RIGHTS TO A JURY TRIAL, and elect to have the dispute resolved by a judge alone.
(e) Waiver of Class or Consolidated Actions. YOU WAIVE ANY RIGHTS TO CLASS OR CONSOLIDATED ACTIONS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Boomr are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: P.O. Box 7119, Church Street Station, New York, NY 10008-7119, Attn: VP General Counsel postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration terms permit either you or Boomr to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Boomr agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in New York, New York.
You may not assign these Terms without Boomr's prior written approval. Boomr may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Boomr's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you and Boomr as a result of these Terms or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Boomr's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Boomr in writing.
Notices to you may be made via either email or regular mail. Notices to Boomr shall be by email, certified or overnight mail. The site may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you on the site.
Please contact Boomr with any questions or concerns in connection with this Agreement, the Site or the Terms at firstname.lastname@example.org or P.O. Box 7119, Church Street Station, New York, NY 10008-7119, Sr. Mgr., Customer Support.
The Terms constitute the entire agreement between you and Boomr and govern your use of the Services, superseding any prior agreements between you and Boomr.