TERMS OF SERVICE
Last Updated: December 27, 2017
Hidrate Inc. (“Hidrate,” “we,” “us,” or “our”) designs beautifully connected devices including the Hidrate Spark smart water bottle to maintain healthy hydration habits in a fun and simple way so that you can live a healthier life and do the things you love. These Terms of Service (“Terms”) govern your use of our website located at https://hidratespark.com (the “Site”) and our mobile application, including the mobile application entitled “Hidrate Spark” (the “App”) that, together with the Hidrate Spark smart water bottle device (“Device”) track your water consumption (collectively, the functionality provided by the App and the Device, the “Service”). For bulk orders of Devices, please see our Bulk Order Terms and Conditions located here: https://hidratespark.com/pages/bulk-order-terms (the “Bulk Terms”).
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SITE, THE APP, OR THE SERVICE, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, PURCHASING A DEVICE, AND/OR MERELY BROWSING THE SITE OR APP, OR DOWNLOADING THE APP, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HIDRATE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT, AND TO BIND THAT COMPANY TO THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, THE APP, OR THE SERVICE.
PLEASE BE AWARE THAT THE DISPUTE RESOLUTION SECTION OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF MINNESOTA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICE.
Certain features of the Service may be subject to additional guidelines, terms or rules, which will be posted in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into these Terms. In the event of a conflict between the additional terms or any other agreement and any provision in these Terms, the additional terms will prevail, but only with respect to the portion of the Service to which the additional terms apply.
Terms May Change
These Terms are subject to change over time in Hidrate’s sole discretion. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on our Site at www.hidratespark.com/pages/terms-of-service and update the Last Updated date at the top of these Terms. If we make any material changes to these Terms and you have a Member Account, we will send an e-mail to you at the last e-mail address you provided to us pursuant to these Terms. Any changes to these Terms will be effective immediately for new users of the Service and will be effective thirty (30) calendar days after sending notice of such changes for existing users. Hidrate may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. If you do not agree to any changes after receiving a notice of such changes, you must stop using the Service immediately and you are no longer authorized to use the Service. Otherwise, your continued use of the Service constitutes your acceptance of such changes. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
Use of the Service
Who Can Use Hidrate?
You may use the Hidrate Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the Hidrate Service using a device that is manufactured, distributed, or sold by or on behalf of Hidrate; the App; and/or the Site (“Authorized Connections”). You may not connect to the Hidrate Service with any device that is not manufactured, distributed, or sold by or on behalf of Hidrate (such as a knock off or counterfeit version of the Device); otherwise intends to resemble or purports to be a Device; or any unauthorized application or-third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Hidrate Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact us.
In order to use certain features of the Service, you must create an account (“Account”) by registering with us. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You agree not to create an Account or use the Service if you have been previously removed by us or banned from any of the Service. You represent that you are (a) at least eighteen (18) years old; (b) of legal age to form a binding contract; and (c) not a person barred from using the Service under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. We reserve the right in our sole discretion to suspend or terminate your Account and/or refuse any and all current or future use of the Service (or any portion thereof) at any time for any reason. You agree that neither Hidrate, nor our affiliates, suppliers or licensors, will be liable to you or to any third-party for any suspension or termination of your Account or any refusal of any use of the Service (or any portion thereof). Hidrate reserves the right in their sole discretion to remove any content that you provide and/or upload to the Service at any time for any reason, including, but not limited to, information you provide for your user profile. You agree that neither Hidrate, nor its affiliates, suppliers or licensors will be liable to you or to any third-party for such removal.
You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of your Account by minors. You agree to immediately notify Hidrate of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Neither Hidrate nor its affiliates, suppliers or licensors will be liable for any loss or damage arising from your failure to comply with the above requirements.
You may also link your Account with certain third-party social networking services, including Facebook, (each an “SNS Account”) by either (1) providing your SNS Account login information to Hidrate; or (2) allowing Hidrate to access your SNS Account, if either or both methods of access are permitted under the applicable terms and conditions that govern your use of each SNS Account. You represent that you are entitled to disclose your SNS Account login information to Hidrate and grant Hidrate access to your SNS Account without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating Hidrate to pay any fees or making Hidrate subject to any usage limitations imposed by such third-party service providers. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL NETWORKING SERVICE PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENTS WITH SUCH SOCIAL NETWORKING SERVICE PROVIDERS.
You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
No Support or Maintenance; Updates
You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Service. You agree that we are not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Service (each an “Update”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such updates, your remedy is to terminate your Account. If you do not terminate your Account, you will receive updates automatically. You acknowledge that you may be required to install updates to use the Service and you agree to promptly install any Updates Hidrate provides. In the event we decide to offer an Update, you agree that we may amend these Terms in connection with such Update without specific notice to you and that your use of the Service following such Update is conditioned upon your acceptance of any revised Terms. By using the Service following an Update, you are representing that you have reviewed the then-current version of these Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by us as of the date you use the Service following such Update.
Ownership and License
“Hidrate Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Hidrate Service to you. The Site, the App, the Hidrate Content, the Hidrate Service and its underlying technology are subject to protection under trademark, patent, intellectual property, and other laws throughout the world. Excluding any User Content (defined below) that you may provide, you acknowledge and agree that the foregoing are and will remain the sole property of Hidrate and its affiliates, suppliers and licensors and all the intellectual property rights in the foregoing are owned by Hidrate and its affiliates, suppliers and licensors. Hidrate’s name, logo, and the product names associated with the Service belong to Hidrate or its affiliates, suppliers or licensors, and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your use of or access to the Service transfers to you or any third-party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth below. Hidrate and its affiliates, suppliers and licensors and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. You agree not to remove, change or obscure any trademark, service mark or other proprietary rights notices incorporated in or accompanying the Hidrate Service.
Subject to these Terms, Hidrate grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, solely for your personal, noncommercial use (and not for relicense, resale or distribution) to (1) access, view and reproduce certain portion the Hidrate Content, (2) access and use the software and associated documentation made available via the Hidrate Service, and (3) use the App on any compatible device that you own or control. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third-party terms of the App Store (the “Usage Rules”) when using the App. To the extent the terms of these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App on an Apple-branded product that runs the iOS (Apple’s proprietary operating system).
You acknowledge and agree that the availability of the App and the Service is dependent on the third-party from whom you received the App license, e.g., the App Store. You acknowledge that the Terms are between you and Hidrate, and not with the App Store. Hidrate, not the App Store, is solely responsible for App and Service, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with App or Service. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App or Service. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
Certain software code incorporated into or distributed with the Service may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under these Terms and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
When you use the Service on a mobile device, we may also collect location information from the GPS functionality on your device. You hereby authorize us, our suppliers and licensors and the Service to take such actions and access such data. You can grant or revoke your consent at any time by changing the settings on your device. You hereby authorize the App to access such components of your mobile device.
The following applies to any App Store Source App:
(a)You acknowledge and agree that (i) the Terms are concluded between you and Hidrate only, and not Apple, and (ii) Hidrate, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.
(b)You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
(c)In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between Hidrate and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Hidrate.
(d)You and Hidrate acknowledge that, as between Hidrate and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e)You and Hidrate acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third-party’s intellectual property rights, as between Hidrate and Apple, Hidrate, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f)You and Hidrate acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.
(g)Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.
As a part of the Service, you may have access to materials that are hosted by another party. Hidrate is not responsible for and does not control such materials. Hidrate has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to such materials. You use all such materials at your own risk.
“User Content” means any and all information and content that a user submits to, or uses with, the Service, including the information collected from the Device regarding your hydration habits. You are solely responsible for your User Content. You assume all risks associated with use of your User Content. You understand that we do not guarantee any confidentiality with respect to your User Content. You hereby represent and warrant that your User Content does not violate the restrictions set forth below. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by us. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the restrictions set forth below. We are not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. Neither Hidrate nor its affiliates, suppliers or licensors will have any responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. You acknowledge that we have no obligation to pre-screen User Content, although we reserve the right in our sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICE THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD-PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT CERTAIN INFORMATION YOU PROVIDE MAY BE ACCESSIBLE BY USERS OF THE SERVICE.
We do not claim any ownership of your User Content. By making available your User Content on or in the Service, you represent that you own or have all rights necessary to make available your User Content to us.
You hereby grant, and you represent and warrant that you have the right to grant, to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part) solely for the purposes of including your User Content in the Service and operating, providing and promoting the Service. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise commercially exploit the Hidrate Content, Hidrate Service or any portion thereof, except as expressly permitted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Hidrate Service: (1) use, display, mirror or frame the Hidrate Service or any individual element within the Hidrate Service, Hidrate’s name, any Hidrate trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Hidrate’s express written consent; (2) access or tamper with non-public areas of the Hidrate Service, Hidrate’s computer systems, or the technical delivery systems of Hidrate’s providers; (3) test the vulnerability of any Hidrate system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Hidrate or any of Hidrate’s providers or any other third-party (including another user) to protect the Hidrate Service or Hidrate Content; (5) access the Hidrate Service or Hidrate Content through the use of any mechanism other than through the use of an Authorized Connection, Hidrate Service or Hidrate API; (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Hidrate provides to you or any other part of the Hidrate Service; or (7) access Service in order to build a similar or competitive website, product, or service.
You agree not to use (i) take any action or (ii) make available any User Content on or through the Service that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, tortious, or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (C) in violation of any laws, or obligations or restrictions imposed by any third-party.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Service to harvest, collect, gather or assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).