TERMS AND CONDITIONS OF USE
Date of Last Revision: Jan 6, 2014
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE OR THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU ARE OBTAINING A LICENSE ON BEHALF OF AN ORGANIZATION, YOU CONFIRM THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION AND THAT THE ORGANIZATION WILL BE BOUND BY THESE TERMS, AND THE TERM "YOU" SHALL THEN REFER TO YOU AND YOUR ORGANIZATION. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEB SITE OR THE SERVICES.
These terms and conditions of use ("Site Terms") apply exclusively to your access to, and use of, the AirBeat Web site, owned by AirBeat, Inc. ("Company"), located at AirBeat.com (the "Site") and the information and other services provided therein and through the AirBeat services (the "Services"), including but not limited to, mobile clients and desktop clients. These Site Terms do not alter in any way the terms or conditions of any other agreement you may have with Company, or its subsidiaries or affiliates, for products, services or otherwise.
Company reserves the right to change or modify any of the terms and conditions contained in these Site Terms or any policy or guideline of the Site or the Services, at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site. Your continued use of this Site or the Services following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Site Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site and Services. If you do not agree to the amended terms, you must stop using the Site and the Services.
2. Age Restrictions.
If you are not fourteen (14) years old or older, you may not use this Site or the Services. If you are fourteen (14) or older but under the age of eighteen (18), then you agree to review these terms and conditions with your parent or guardian prior to use of the Site or the Services. If you are a parent or guardian entering this agreement for the benefit of a child aged (14) or older, then you agree to and accept full responsibility for that child's use of the AirBeat software and the Services, including all financial charges and legal liability that he or she may incur.
3. Product Description & Safety.
The Services are designed to track your smartphone-based metrics of sport activities and location changes. It permits you to upload the data and share it in the internet via the Site or social networks. They are also designed to provide you with the ability to know when you are broadcasting your location and with the ability to control the duration of such broadcast. Nonetheless, use of the Services may involve special risks associated with other persons knowing your location and knowing your sport metrics. You should only share such information with those that you trust. You should not endanger yourself or others by viewing a portable device while driving, operating dangerous mechanical devices, or in other situations in which you should be observing your surroundings.
4. Consent to Receive Emails
By using the Site or the Services, you consent to receive emails from AirBeat, which may include commercial emails. We will not use your personal information to send you news and product updates, unless you "opt in" to receiving such communications. In addition, you may "opt out" of receiving marketing or promotional email from AirBeat by following unsubscribe instructions or using unsubscribe links within communications we send. Please note, however, that as long as you receive the Services, you may not "opt out" of receiving service related emails from AirBeat.
5. Copyright and Limited License
Unless otherwise indicated, the Site and all content and other materials on the Site or forwarded by AirBeat through the Services, including, without limitation, the Company logo, and all designs, text, graphics, pictures, reviews, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "AirBeat Materials") are the property of Company or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-sublicensable license to access and use the Site and the Services. Such license is subject to these Site Terms and does not include or authorize: (a) any resale or commercialization of the Site, the AirBeat Materials or the content forwarded to you by the Services; (b) the distribution, public performance or public display of any AirBeat Materials, (c) modifying or otherwise making any derivative uses of the Site or the AirBeat Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Site, the AirBeat Materials or any information contained therein, except as expressly permitted on by AirBeat; or (f) any use of the Site or the AirBeat Materials other than for its intended purpose. Any use of the Site or the AirBeat Materials other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Site Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
6. Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company's sole discretion, users who are deemed to be repeat infringers. Company may also at its sole discretion limit or terminate access to the Site and the Services of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
7. Copyright Complaints
If you believe that any material on the Site or the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
E-Mail Address of Designated Agent: email@example.com
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's address in our records.
'AirBeat', the Company logo and any other product or service name or slogan contained on the Site or included in the Services are trademarks of Company and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "AirBeat" or any other name, trademark or product or service name of Company without our prior written permission. In addition, the look and feel of the Site and graphical user interface of the Services, including, but not limited to, all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site or through the Services are the property of their respective owners.
You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Company, any of its products and services, in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Company logo or other proprietary graphic of Company to link to this Site without the express written permission of Company. Further, you may not use, frame or utilize framing techniques to enclose any Company trademark, logo or other proprietary information, including the images found in Content without Company's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Company or any third party.
Company makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site or through the Services, or Web sites linking to the Site. Such sites are not under the control of Company and Company is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Company provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Company of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
Please report any violations of these Terms and Conditions to firstname.lastname@example.org .
11. International Users
We make no claims that the Content is appropriate or may be downloaded outside of the United States. Access to the Content may not be legal in certain countries or for certain persons. If You access the Site from outside of the United States, You do so at Your own risk and are responsible for compliance with the laws of Your jurisdiction.
12. Disclaimers and Acknowledgements Regarding Use of Site Information
THE SITE, THE AIRBEAT MATERIALS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS ON THE SITE OR PROVIDED THOUGH THE SERVICES. COMPANY DOES NOT REPRESENT OR WARRANT THAT AIRBEAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You should independently verify the accuracy of any information you obtain on the Site or through the Services before using it. You agree to be solely responsible for your use of the content found on this Site, the AirBeat Materials and the Services.
COMPANY IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED ON THE SITE OR THROUGH THE SERVICES. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE AND SERVICES SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVICES, OR ANY CONTENT OR MATERIALS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS FROM ANY DOWNLOAD.
Company reserves the right to change any and all content contained in the Site and any Services offered through the Site at any time without notice.
13. Limitation of Liability
IN NO EVENT SHALL COMPANY OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SITE, THE SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM COMPANY OR THE SITE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO COMPANY'S RECORDS, PROGRAMS OR SERVICES. THE AGGREGATE LIABILITY OF COMPANY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SITE, THE SERVICES OR THE AIRBEAT MATERIALS, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO COMPANY FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH\, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
14. Third Party Content
Company or users may provide links to Web pages and content of third parties as a service to those interested in such links and content, and Company may post third party content or allow users to post their content or third party content to the Site or through the Services(such content is collectively referred to as "Third Party Content"). Company does not monitor or have any control over any Third Party Content or third party Web sites. Company does not endorse or adopt any Third Party Content or third party Website and can make no guarantee as to its accuracy or completeness. Company does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any Third Party Content or third party Websites. Users use these links, Third Party Content and third party Websites at their own risk.
15. Third Party Services
The Site or the Services may also contain, provide information regarding or link to certain applications and services provided or offered by third parties (collectively the "Third-Party Services"). Company is merely an information provider and is not a referral service, and it does not recommend or endorse any such Third-Party Services or monitor or have any control over such Third-Party Services. Therefore, Company makes no guarantee, representation or warranty of any kinds as to the quality, competency, value, reliability, responsiveness, accuracy or completeness of any such Third-Party Services or the results obtained therefrom, and Company assumes no responsibility or liability for any Third Party Services or for the actions or failure to act of those providing such Third-Party Services. You assume full responsibility for your use of any such Third-Party Services, and Company is not responsible or liable for any Third-Party Services.
16. Advertisements and Promotions
Company may run advertisements and promotions from third parties on the Site or through the Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Company, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Company is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-Company advertisements on the Site or made available through the Services.
17. Mobile Services
Some of the Services require the use of mobile devices and wireless services. AirBeat does not charge for its Services except premium features. However, your mobile service provider may or will charge you for those services that it provides to your mobile devices/services, which are related to using the AirBeat services. You should check with your carrier to learn about such charges. By using the Services, you agree that AirBeat may communicate with you regarding the Services by SMS, text message, email or other electronic means to your mobile device or email address, including without limitation providing promotional offers and information from third parties.
You acknowledge and agree that any materials, including but not limited to questions, comments, reviews, suggestions, ideas, feedback, plans, notes, original or creative materials or other information, provided by you in the form of email or other submissions to Company, or any postings on the Site or made available through the Service, are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
19. User Posted Content & Other Interactive Services or Areas
The Site includes areas in which users may post content and information (the "User Content") and may include other interactive areas or services in which you or third parties may create, post, modify or store information, content, materials or other items ("Interactive Areas"). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site or the Services any of the following:
- User Content that is false, deceptive, deceitful, misleading, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, harmful to minors, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, violate any applicable rules of professional conduct, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content as provided under these Site Terms;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations, including without limitation any advertisements for commercial services or products;
- Private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, spyware, malware, corrupted data or other harmful, disruptive or destructive files;
- Any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; and
- User Content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas, the Site or the Services, or which may expose Company or its users to any harm or liability of any type.
User Content that harasses, degrades, intimidates or is hateful toward an individual or group of individuals for any reason and especially on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability.
Additionally, you agree not to:
- Use the Services to impersonate a third party or load the AirBeat software on a third party's mobile device without their permission;
- use the Services to "stalk", harm or otherwise harass anyone;
- use the Services or collect personal data about others for unlawful purposes;
- use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Site or the Services - unless expressly permitted by AirBeat;
- post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
- attempt to gain unauthorized access to AirBeat's computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services or the AirBeat website;
- use any form of automated device or computer program that enables the submission of postings without each posting being manually entered by the author thereof (an "automated posting device"), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals; or
- Threaten anyone or exploit anyone in a sexual, violent or other objectionable manner.
Company disclaims all liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of Interactive Areas is at your own risk. As a provider of interactive services, Company is not liable for any statements, representations, responses, comments or other User Content provided by its users. Although Company has no obligation to screen, edit or monitor any of the User Content posted in any Interactive Area, Company reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site or made available through the Services at any time and for any reason without notice. Any use of the Interactive Areas or other portions of the Site or the Services in violation of the foregoing violates these Site Terms and may result in, among other things, termination or suspension of your rights to use the Interactive Areas, and/or the Site and/or the Services.
If you post User Content to the Site or through the Services, you grant Company and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media. You grant Company and its affiliates and sublicensees the right to use the name that you submit in connection with such User Content, if they choose. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Site and the Services and to grant the rights granted herein; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Site Terms and will not violate any rights of or cause injury to any person or entity.
20. Registration Data; Security
In consideration of your use of the Site and/or Services, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site or through the Services ("Registration Data"); (b) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (c) accept all risks of unauthorized access to the Registration Data and any other information you provide to Company. In addition, you agree not to access or use, or attempt to access or use, the Site or any part thereof or the Services using the identity or the Registration Data of any person other than yourself.
You agree to defend, indemnify and hold harmless Company, its corporate affiliates, independent contractors, service providers and consultants, and each of their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Site or the Services or your use of or inability to use the Site or the Services, including without limitation any actual or threatened suit, demand or claim arising out of or relating to the User Content, your conduct, your violation of these Site Terms or your violation of the rights of any third party.
22. Applicable Law and Venue
These Site Terms and your use of the Site and Services shall be governed by and construed in accordance with the laws of the United States of America and the State of Washington applicable to agreements made and to be entirely performed within the State of Washington (even if your use is outside of the State of Washington), without resort to its conflict of law provisions. You agree that with respect to any disputes or claims not subject to arbitration (as set forth below), any action at law or in equity arising out of or relating to the Site, the Services or these Site Terms shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
You and Company agree that except as otherwise specifically provided in this paragraph, any controversy or claim arising out of or relating in any way to these Site Terms, or the breach thereof , or to the Site and/or the Services shall be settled exclusively by arbitration administered by the American Arbitration Association (the "AAA") in accordance with its Commercial Arbitration Rules and, in the case of consumer disputes, with the AAA's Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules"), and that judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, then the parties acknowledge that arbitration is not an adequate remedy at law and that without waiving any remedy under these Site Terms, injunctive or other appropriate relief may be sought from any court specified in Section 19 (above). The place of arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules. To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. In no event shall any claim, action or proceeding by you related in any way to the Site or the Services be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section 22 (Arbitration) is held to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified automatically to comply with such provision and the remainder of this Section 20 shall not be affected.
Notwithstanding any of these Site Terms, Company reserves the right, without notice and in its sole discretion, to terminate your license to use the Site and the Services, and to block or prevent your access to and use of the Site and the Services.
If any provision of these Site Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Site Terms and shall not affect the validity and enforceability of any remaining provisions.
26. Questions & Contact Information
Questions or comments about the Site or the Service may be directed to Company at the email address email@example.com.