Terms of Service

Congratulations and welcome to the BOOST community! You've taken a major step towards helping your children to become confident and productive adults that thrive.

These Terms of Service (these "Terms"), along with any materials on Boost’s website referenced herein, govern the relationship between you (referred to in these Terms as "Client") and Boost Program for Kids, L.L.C., a Pennsylvania limited liability company ("Boost") and apply to any and all services, products and deliverables provided by BOOST to Client (the "Services"). Intending to be legally bound, Client and BOOST hereby agree as follows:

Applicability of These Terms.

· The Services may include any services, products and deliverables and BOOST wishes to provide such Services to Client subject to these Terms. For the avoidance of doubt, BOOST would not provide the Services if not for Client's acceptance of these Terms.

· By accepting any Services or enrolling in any Boost Program, Client agrees to be bound by these Terms and acknowledges that these Terms shall be legally binding upon Client and BOOST.

· Client shall be bound by any future modifications to these terms which will be available at https://boostkids.com/terms-of-use

· In the event that BOOST makes any updates to these Terms which BOOST determines, in its good faith judgment, would have a material effect on Client, BOOST shall use commercially reasonable efforts to notify Client of such changes which may be satisfied by sending Client an email to the contact email address provided by Client to BOOST during the on-boarding process.

Services to be Provided.

· BOOST shall use commercially reasonable efforts to provide the Services described on BOOST's website from time to time in a competent, professional and timely manner. Due to the nature of the Services, BOOST cannot guarantee any level of results or performance arising from the Services and shall not be responsible for the same.

· In the event that the Client decides to modify, amend or otherwise change the scope of the relationship or the scope of Services, Client may only do so by enrolling in such additional Programs or Services through the Boost website. In addition, BOOST may rely, in good faith, on any acknowledgment from Client accepting any change to a Client’s enrollment or BOOST's pricing.

· For purposes of these Terms and all Services to be provided hereunder, neither BOOST, nor any of its employees or subcontractors, shall be considered an employee or representative of Client, but shall remain in all respects an independent contractor.

Client Obligations.

· Client acknowledges and agrees that that Client's use and application of the Services in the order provided, and the completion of all program requirements is necessary to achieve any success, and any delays or failure by Client in this regard shall not (a) be the responsibility of BOOST or (b) affect, delay or reduce Client's payment obligations.

· As required to perform the Services, Client may provide to BOOST certain data, content and information that Client wishes BOOST to utilize in connection with the Services ("Client Material"). Client hereby grants to BOOST a non-exclusive, royalty-free license to use, copy and modify the Client Material for use in the Services on behalf of Client.

· Client represents and warrants to BOOST that Client has the full legal right to grant to BOOST the right to use the Client Material hereunder and that the Client Material does not infringe upon the right of any third party.

· BOOST shall not be responsible for providing any services or products that are not contemplated by the applicable Client enrollment and Client shall remain solely responsible for maintaining its own computer systems, data, hardware and software.

· Client agrees to use BOOST's online tools and technology (e.g., BOOST's online portal), as the primary system through which to communicate, track progress and upload any documents related to the Services. Client must be a registered user to access BOOST's online tools and technology. Client is responsible for keeping login credentials secure, and Client is solely and strictly liable for any activity that occurs under Client's account or username. Client may not access, or attempt to access, other user's accounts and/or data.

Term.

· The term for the Services shall be one (1) year. In the event of non-payment by Client (or other breach of these Terms by Client), BOOST may suspend access to the Services and/or terminate the relationship immediately upon written or digital notice to Client.

· Client shall not have any access or right to use any of BOOST's intellectual property subsequent to the termination of the relationship between the parties.

· If Client is dissatisfied with any of the Services in Client’s sole discretion, for a period thirty (30) days after Client’s enrollment in any Service, Client shall have the right to cancel the Service and receive a full refund of payment for such Service. After the expiration of thirty (30) days after enrollment in any Service, the payment for such Service shall be non-refundable to the Client.

Compensation.

· As compensation for BOOST's performance of the Services, Client shall pay BOOST the annual subscription fee for such Service agreed to at the time of signing up. BOOST may choose to modify subscription fees, and benefits from time to time in its sole discretion. Except as set forth herein, all fees are non-refundable.

· Client shall pay all amounts in advance by credit card.

· Notwithstanding anything else in these Terms, Client shall be responsible for all costs associated with BOOST collecting any overdue amounts (including any reasonable legal costs incurred).

· Client acknowledges the subscription fees shall begin on the date that Client first accepts these Terms, regardless of any delays in the delivery of the Services except to the extent caused by the gross negligence or intentional misconduct of BOOST.

Warranties, Disclaimers and Limitations of Liability.

· Under no circumstances and under no legal theory, whether in tort, contract or otherwise, will BOOST be liable to Client for any indirect, special, incidental, consequential or punitive damages of any character, even if BOOST has been advised, knew or should have known of the possibility of such damages. In no event shall BOOST's aggregate liability to Client in connection with the Services exceed the amount of fees paid to BOOST hereunder during the immediately preceding six-month period no matter the cause of the claims made by Client. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action that Client may wish to assert related in any manner to the Services must be filed within one (1) year after such claim or cause of action first accrued or be forever barred.

· In no event shall either party be responsible for any indirect, incidental, consequential, punitive or special damages regardless of whether such part has been advised of the same.

· Client acknowledges and agrees that BOOST may rely on third parties to provide services and products necessary for BOOST to perform the Services and that BOOST shall have no liability to Client as a result of the failure of such third parties.

· Content provided by BOOST to Client in connection with the Services may include sample or template text as a courtesy to Client. Any such content is intended to convey general information only and not to ensure legal compliance or provide legal advice. No action should be taken in reliance on such information and BOOST disclaims any and all liability in respect to actions taken or not taken based on any or all of the contents of such information. An attorney should be contacted for advice on specific legal issues.

· Client shall defend, indemnify and hold harmless BOOST and its representatives from and against any claims, actions, obligations, damages, losses or liabilities arising out of (a) any action brought against BOOST by any party as a result of Client's use of the Services, (b) any breach of these Terms by Client and/or (c) any claim that BOOST's use of any Client Material in connection with the Services infringes the intellectual property riBoostts of a third party. This obligation shall survive the expiration or termination of the relationship between Client and BOOST.

· Client understands, acknowledges and confirms that the programs set forth herein are educational in nature and results may vary. No part of the programs or Services provided by BOOST should be construed to constitute any diagnosis of any medical condition or constitute any medical treatment for any medical condition. Client should consult with Client’s physician prior to enrolling in any program or Service. Client expressly acknowledges and confirms that certain neurodiverse conditions may require specific medical diagnosis and treatment and the Services and programs offered by BOOST should in no event be considered as a substitute for any medical treatment.

· EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE "SERVICES" SECTION SET FORTH ABOVE, THE SERVICES ARE PROVIDED "AS-IS" AND BOOST HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Confidentiality; Publicity.

· As used in this Section, the term "Discloser" shall refer to Client whenever the context refers to Client's Confidential Information being disclosed to BOOST, which is referred to as "Recipient" in that context. Conversely, the term "Discloser" shall refer to BOOST whenever the context refers to BOOST's Confidential Information being disclosed to Client, which is referred to as "Recipient" in that context.

· Recipient shall not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than to carry out the intent of these Terms. Recipient shall not disclose or permit disclosure of any Confidential Information to third parties or to employees of Recipient, other than directors, officers, employees, members, managers consultants and agents of Recipient who are required to have the information in order to carry out the obligations hereunder. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of unauthorized persons. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient shall promptly notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information which may come to Recipient's attention. "Confidential Information" means information and physical material not generally known or available outside Discloser and information and physical material entrusted to Discloser in confidence by third parties, which is provided by or on behalf of Discloser to Recipient in connection with the Services.

· BOOST has the right and license to reference Client as a client in standard marketing materials or as part of a "case study" or "customer success story" or the like depicting the relationship contemplated by these Terms.

Intellectual Property.

· Nothing in these Terms will transfer any right, title or interest in BOOST's designs, inventions, patents, copyright, trade secrets, trade names or other Intellectual Property to Client or any third party.

· Each party shall retain all pre-existing rights they may have in their respective Intellectual Property.

· Client Grants BOOST the ability to display, promote, or showcase said intellectual property for the purposes of BOOST’s self promotion.

· "Intellectual Property" shall include copyrights, design rights, patents, patent applications and any rights to inventions, trade secrets, trade and business names, logos and devices, trade and service marks (where registered or unregistered) and any applications therefore and all rights in a party's Confidential Information.

· Client agrees that the methodologies, strategies, designs, templates, general knowledge, skills, experience, ideas, concepts, know-how and techniques used by BOOST in the course of performing Services hereunder are all part of BOOST's proprietary Intellectual Property and are owned exclusively by BOOST.

Personal Information; Electronic Communications.

· All personal information BOOST collects through the Services is subject to our Privacy Policy. By using the Service, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

· The parties agree that, except for the minimum necessary customary contact information (e.g., name, email address, telephone), personal information shall not be transmitted within the Services. For purposes of clarification and not limitation, sensitive personal information (e.g., "protected health information" as defined by HIPAA, "nonpublic personal information" as defined by GLBA, etc.) shall not be transmitted within the Services. Notwithstanding the foregoing, if at any point the parties decide to process sensitive personal information within the Services, a separate agreement or addendum regulating data handling policies will be entered into by the parties in advance.

· In the event that "personal information" as defined by the California Consumer Privacy Act of 2018 ("CCPA") is provided to or processed by BOOST in connection with the Services, Client and BOOST acknowledge and agree that BOOST is a "service provider" as defined by CCPA. This means that BOOST processes personal information on Client's behalf when Client discloses personal information to BOOST in connection with the Services. If BOOST processes personal information on Client's behalf, BOOST will not:

· retain, use, or disclose such personal data in connection with the Services for any purpose other than for performing the Services and in accordance with Client's instructions;

· use or process such personal data for commercial purposes or direct marketing;

· sell or promote the sale of such personal data; or

· disclose or transfer such personal data to unauthorized personnel or parties, or outside the direct business relationship between Client and BOOST.

· You hereby consent to receiving communications in any form from BOOST in connection with the Services, including but not limited to the following: by mail, by electronic mail, by telephone (landline or wireless), by push notification and by text messages (i.e., SMS and/or MMS communications). Furthermore, you hereby consent to receiving calls or text messages from BOOST in connection with the Services made to wireless telephone numbers that are automatically dialed and/or include pre-recorded messages.

Dispute Resolution.

· These Terms and the rights of the parties hereunder shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

· As set forth more fully below, any disputes between the parties arising under or relating to these Terms shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration.

· Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling and determining the venue of the mediation proceedings, provided that the mediator shall be a retired judge and the mediation shall take place in Montgomery County, Pennsylvania.

· The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

· Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (the "Earliest Initiation Date").

· The mediation may continue after the commencement of arbitration if the parties so desire. If the dispute is submitted to arbitration, then the dispute shall be determined by arbitration before a single arbitrator. The parties will cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel of neutrals who shall be a retired judge and in determining the venue of the arbitration proceedings, which shall take place in Montgomery County, Pennsylvania.

· The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.

· Notwithstanding any of the foregoing, BOOST shall not be subject to this section entitled "Dispute Resolution" for any matters relating to non-payment by Client and BOOST shall remain entitled to seek any and all legal remedies against Client in the event of non-payment.

· Notwithstanding anything to the contrary in these Terms, BOOST may seek equitable remedies against Client in the event that Client violates (a) any confidentiality obligation to BOOST hereunder or (b) utilizes or reproduces the Intellectual Property of BOOST in any manner not explicitly allowed by these Terms.

· Any notice required to be sent to BOOST hereunder must be sent to [email protected].

Miscellaneous Terms.

· These Terms are the entire agreement between BOOST and Client with respect to the Services to be performed hereunder and supersede all prior and/or contemporaneous agreements and understandings with respect hereto, whether oral, written, or in any other medium, that might exist between the parties with relation to the subject matter hereof.

· Client may not assign these Terms without the prior written consent of BOOST. Either party may, without consent of the other party, assign these Terms to a successor in interest to substantially all of the business of the assigning party to which the subject matter of these Terms relates. These Terms shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.

· Any waiver of a breach of any provision of these Terms shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof. All waivers shall be in writing and signed by the waiving party.

· Neither party shall be liable or deemed to be in default for any delays due to causes beyond the reasonable control of the party such as war, civil disorders, shortages of raw material or energy or other conservation matters, acts of God, labor shortages or labor strikes or stoppages or governmental action, (including regulatory restrictions or actions or regulatory agencies) provided that the affected party promptly notifies the other of the causes and its effects on the Services to be performed hereunder. The foregoing provisions shall not apply to any obligation for the payment of money.

· Under no circumstances shall any other person or entity be considered a third party beneﬁciary of these Terms or otherwise entitled to any rights or remedies hereunder.

· If any provision of these Terms or application thereof to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other provision or application of these Terms which can be given effect without the invalid or unenforceable provision or application and shall not invalidate or render unenforceable such provision or application in any other jurisdiction.