Instabeat, Inc. ("Instabeat" or "we"), provides Instabeat software and services (defined collectively as the "Service") on the Instabeat website and through Instabeat's mobile device applications. By providing your email address and creating an account as a user of the Service (a "User" or "you"), or by otherwise using the Instabeat website or mobile application, you agree to comply with and be bound by the following terms and conditions (this "Agreement"), which we may change at any time and from time to time by posting notice on the Service. PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES. If you do not agree to these terms and conditions, please do not use the Service.
If you register as a User, you represent and warrant to Instabeat that: (i) you are of legal age to form a binding contract; (ii) you will provide Instabeat with accurate, current and complete registration information; and (iii) your registration and your use of the Service is not prohibited by law. Instabeat reserves the right to suspend or terminate your registration, or your access to this Service, with or without notice to you, in the event that you breach any term of this Agreement.
The Service is not directed at users under the age of 13. If you are under the age of 13, you are not permitted to register as a User or use the Service.
Instabeat reserves the right to accept, refuse or cancel orders placed on Instabeat’s website without liability or justification. Instabeat will refund you in case your order was cancelled after your credit card has been charged.
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the Service or used by Instabeat to operate the Service, excluding any User Content (as defined below) is proprietary to Instabeat or to third parties. Instabeat expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and except as expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of such rights is strictly prohibited.
The mark "Instabeat" is a registered trademark of Instabeat or its affiliates, and may not be used in connection with any service or products other than those provided by Instabeat, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Instabeat. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
The information you submit to us as part of your registration, and any data, photographs, text, graphics, video, and other material that you submit or post to Instabeat ("User Content") remain your intellectual property, and Instabeat does not claim any ownership of the copyright or other proprietary rights in such information and User Content. If you believe that any User Content posted by another User infringes your copyrights or other intellectual property rights, please notify us by sending an email to firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a notice because there may be penalties for false claims.
Subject to the terms of this Agreement, Instabeat authorizes you to use the Service for your personal, non-commercial purposes. You may not remove any copyright, trademark or other proprietary notices that have been placed in the Service. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Service, or any portion of the Service, is strictly prohibited without the prior written permission of Instabeat. The Service is licensed, not sold, and you obtain no rights in any copy of software related to the Service other than the rights described in this paragraph.
You agree, and represent and warrant, that your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Service or your use of it, and you will be solely responsible for your own individual violations of any of any such laws.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
We retain the right to implement any changes to the Service (whether to unpaid or Premium Services) at any time, with or without notice. You acknowledge that a variety of Instabeat actions may impair or prevent you from accessing the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Instabeat has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any content or services.
A number of Service features, and any chat areas and blogs, offer opportunities for sharing information with others (the "Interactive Features"). Instabeat does not edit or control User Content that you and other users post to or distribute through the Interactive Features, and will not be in any way responsible or liable for User Content. Instabeat does not screen or control the Users or other individuals that use the Service or Interactive Features. Instabeat shall not be liable for any loss or damage that any person may suffer as a result of using Interactive Features. All users use the Interactive Features at their own risk. Users should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world.
No user of any Interactive Feature shall:
(a) use a Interactive Feature in violation of, or in connection with any violation of, any local, state, national or international laws;
(b) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;
(c) harvest or otherwise collect information about others, including email addresses, without their consent;
(d) post any material more than once or "spam"; or
(e) engage in any other conduct that restricts or inhibits any other person from using or enjoying any Interactive Feature, User Content, or the Service, or which, in Instabeat's sole judgment, exposes Instabeat or any officer, director, employee or agent of Instabeat (each a "Instabeat Affiliate") to any liability or detriment of any type.
No user of this Service shall submit, upload to, distribute through or otherwise post to the Instabeat website (including any Interactive Feature) any material that:
(a) is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
(b) contains any advertising, promotional, solicitation or other commercial material;
(c) contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
(d) infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
(e) contains any statement that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or
(f) contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Neither you nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the Service or User Content, or otherwise access the Service or User Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Service or User Content by machine based or automated means.
Instabeat reserves the right (but is not obligated) to do any or all of the following without notice:
(a) record User Content;
(b) investigate an allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;
(c) remove User Content or User registration information that, in Instabeat’s sole discretion, is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
(d) monitor, edit or disclose any User Content or User registration information, and otherwise generally monitor your use of the Service; or
(e) edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.
Instabeat and Instabeat Affiliates have no liability or responsibility to users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.
Instabeat is pleased to hear from you and welcomes your comments about the Service. In the event that you submit ideas or suggestions for the Service ("Service Comments"), the Service Comments will be deemed, and will remain, the sole property of Instabeat. None of the Service Comments will be subject to any obligation of confidence on the part of Instabeat, and Instabeat and Instabeat Affiliates will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Instabeat will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
You acknowledge that your exercise activities involve risks, which may involve risk of bodily injury or death, and that you assume those risks. You should consult a licensed physician prior to beginning or modifying any exercise program that you undertake, and you acknowledge that Instabeat has advised you of the necessity for obtaining such consultations. In addition, the Service should not be used by individuals under age 13. The Service is a source of information, but it does not provide medical advice. Instabeat makes no representation that Instabeat is a provider of medical services or is in compliance with federal, state or international laws and regulations pertaining to medical providers and other health care related matters, or that Instabeat has any obligations with respect to (a) the appropriateness of your engaging in an exercise program; (b) the results (or lack of results) obtained by your use of the Services; and (c) any health-related matters arising in connection with your use of Instabeat. In no event shall Instabeat be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Service or any exercise or other activity you undertake in connection with your use of the Service.
Without limitation of the foregoing, Instabeat and Instabeat Affiliates make no representations or warranties of any kind regarding the Service or the User Content. The Service and User Content are provided in "AS IS" condition, and Instabeat and Instabeat Affiliates EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICE AND USER CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICE AND USER CONTENT, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR THE USER CONTENT, OR THAT THE SITE, THE SERVERS THAT SUPPORT THE SITE, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. Instabeat will have no responsibility for or liability with respect to any harm to your computer system, loss or corruption of data, or other harm that results from your use of the Services. No advice or information, whether oral or written, obtained by you from Instabeat, any Instabeat Affiliates or through the Service or User Content will create any warranty not expressly stated herein.
YOU USE THE SERVICE AND USER CONTENT AT YOUR OWN RISK, AND NEITHER INSTABEAT NOR INSTABEAT AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM INSTABEAT OR INSTABEAT AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR USER CONTENT, EVEN IF INSTABEAT OR ANY INSTABEAT AFFILIATE HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF INSTABEAT AND INSTABEAT AFFILIATES FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO INSTABEAT IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
Instabeat is not responsible for any interaction that may occur between or among Users. By registering to this website, you agree to take reasonable precautions in interactions with others users on Instabeat’s website. Instabeat is under no obligation to interfere in such disputes.
You shall defend, indemnify and hold harmless Instabeat and Instabeat Affiliates against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with your use of the Service, or your breach of any provision of this Agreement, including without limitation any User Content posted by you and your use of User Content posted by other Users. Instabeat reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You will cooperate with Instabeat with respect to such defense and settlement.
Instabeat complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Instabeat website you may contact our Designated Agent at the following address:
Any notice alleging that materials on this website infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the website;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the website of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If material that you have posted to the website has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:
(a) a physical or electronic signature of the subscriber;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Instabeat may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
All disputes arising out of or relating to this Agreement or the Service shall be resolved exclusively by binding arbitration conducted in Wilmington, Delaware before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. In the event that the American Arbitration Association is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by a court located in the State of Delaware. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the State of Delaware without reference to principles of conflicts of laws. Notwithstanding any rules of the American Arbitration Association to the contrary, any claims shall be adjudicated on an individual basis, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Instabeat does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the Service shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Wilmington, Delaware, except that, following confirmation of an arbitration award in a state or federal court in Wilmington, Delaware, a judgment arising therefrom may be executed in any court of competent jurisdiction.
No delay or omission by Instabeat in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Instabeat of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to." If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Instabeat regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes. There shall be no third party beneficiaries to this Agreement other than Instabeat Affiliates. In no event shall Instabeat be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Instabeat's reasonable control. Any notice, agreement, disclosure or other communication that Instabeat sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Last updated January 15, 1019.
Collection of General, Personally Identifiable and Other Information
We collect standard general information from all Website users, such as IP address, browser type and language, operating system, whether you have enabled software to access certain features, pages visited on our Website, referring and exit web pages, the date, time and duration of visits, information about purchases and other information about interactions with the Website.
Personally Identifiable Information
Our products are designed to work in connection with the Website and the Apps. If you create an account on the Website and/or you use the Apps, you will be asked to provide your name, an email address, and a password. If you use the Apps, you may enter data into the application running locally on your phone, but Instabeat will have no access to it unless it is uploaded to the Website. When you upload your workout data to either the Website or the Apps, we will collect, process and store information related to your swimming performance, e.g. heart rate, laps, turns, etc. The information provided in connection with this paragraph is “Personal Data”.
If you place an order in our online store, we will collect your name, address, email address, phone number and adequate billing information, including credit card information and billing address. This information will also be considered Personal Data. OR This information will be processed directly by a third party that processes our orders and payment information, and will at no time be available to or used by Instabeat.
Creating Instabeat Accounts via Social Media
If you choose to create an Instabeat account using your Facebook or Twitter account, you thereby allow Instabeat to access your Facebook and Twitter account information that is publicly available, or that you have made publicly available by creating an Instabeat account in this manner (for example, name, user ID, profile picture, etc.).
If you subscribe to Instabeat’s newsletter, you will be asked to provide your name and email address.
Use of General Information and Personally Identifiable Information
General Website visitation data is used to administer the Website and provide general statistics regarding its use. Website visitation data is never linked to your personal information, and we do not use it to identify you individually. It is used to administer the Website and provide general statistics regarding its use.
Personally Identifiable Information
We will treat your Personal Data as confidential, and will not share your Personal Data with third parties without your permission, except in the limited circumstances described below.
We will use the Personal Data to fulfill the services and products you request from us. This may include:
In the event Instabeat is party to a business transition such as a merger, acquisition by another company, sale of assets or other change of control, users' Personal Data will, in most instances, be included in the assets transferred. We may share information with a parent company, subsidiaries, joint ventures, or other companies that are affiliates of Instabeat.
We may use and disclose Personal Data in a form that does not identify any individual, to allow Instabeat and our advertisers to present targeted advertising to you. We may disclose to third parties, including advertisers and potential business partners, aggregated statistics that we develop from Personal Data. This statistical information will not identify any individual.
Instabeat will not sell your Personal Data with outside parties without your consent. Instabeat will not share your Personal Data with outside parties without your consent, provided that we may share your information with third parties who help us manage our business. Their services may include, but are not limited to, handling credit card processing, shipping, data management, market research, information analysis, and promotions management. These third parties are obligated to protect your information and keep it confidential.
Sharing Information Through Social Media and In User Forums
The Website and the Apps allow you to share certain of your Personal Data via social media. If you enable the sharing of Personal Data via social media, please bear in mind that Instabeat cannot control what third parties see or do with your Personal Data, and will not be responsible for the data you share on these platforms. Your shared data will be subject to the privacy policies of these platforms. Information that is publicly shared may be used by Instabeat for promotional purposes.
If you participate in a user forum on Instabeat, your comments and your Instabeat username will be displayed to all Instabeat users on the forum. Instabeat is not responsible for what any user or third party may do with information that you choose to share.
Control of Personally Identifiable Information
You can confirm, change, or update Personal Data that you have provided to us via your Website and/or Apps accounts. Any information uploaded to the Website may still be stored in our servers, and may be used by Instabeat in a manner consistent with this policy following changes to your account.
If you desire to opt-out of communications from Instabeat, you can do so by emailing your request to email@example.com. When you opt-out of promotional communications from us, you may still receive service messages (such as an order confirmation) and legally mandated notices.
With respect to your Website and App accounts, if you realize that your login credentials are compromised, you are advised to immediately change your password. Instabeat will not be responsible for data breach in this case.
Security of the Information That We Collect
We use a range of technologies and procedures to protect your personal information. For example, we store personal information and Personal Data in a secure, limited access facility, and we use industry-standard firewalls and security software design to protect the security and integrity of your Personal Data. We use secure servers when you place orders. All credit card information you supply is transmitted via Secure Socket Layer (SSL) technology and then encrypted within our databases.
Even though we have taken steps to protect your personal information, you should know that neither we nor any company can fully eliminate security risks.
Protection of children's privacy
The Website is a general interest website, and we do not knowingly collect or distribute personal information of children under 13 years of age. If you are under 13, you are not permitted to use the Website. If we find determine that a child under 13 has provided personal information, we will take measures to promptly delete the information and/or any corresponding account.
Cookies are small pieces of information that a website sends to your computer's hard drive while you are viewing a web site. We may use both session Cookies (which expire when you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on the Website. If you return to the Website any persistent Cookies may be read. If you choose to disable Cookies, some areas of the site may not work properly. Cookies are not linked to your personal information.
We may also use web beacons, clear gif technology, or action tags as mechanisms to collect aggregate site visitation data by tracking how users navigate to and through our website. We may also use this technology to track the delivery of HTML email messages. Data collected through this mechanism is not linked to personal information.
In addition, if you are using the iPhone application only, Instabeat or our partners may use analytics technology to track anonymous traffic data about use of the application. This data does not include your Personal Data.
Enforcement of this policy
If you have questions about this policy, please email us directly at firstname.lastname@example.org.
Links to other websites
The Website may contain links to other websites. Please be aware that we are not responsible for the privacy practices of these other sites, and we encourage you to review the policies of each site you use.
Changes to this statement
We may from time to time update this privacy statement. When we make these updates, we will change the "last updated" date listed below. If we make a major change to this statement, we will update users by placing a more prominent notice on our home page. Your use of the Website or the Apps after an updated privacy statement becomes effective will indicate your acceptance of this privacy statement as revised.
Users from outside [the United States]
Instabeat and the Instabeat servers are located in [the United States/Lebanon] and are subject to the applicable state and federal laws of [the United States/Lebanon]. If you use the Website or the Apps, you consent to the use and disclosure of information in accordance with this privacy statement and subject to such laws.
Any notice, agreement, disclosure or other communication that Instabeat sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Last Updated: 1/15/2019