Though the first visible sign of disease can be a heart attack or stroke, invisible changes occur within your body long before these deadly, debilitating events. Kb4E creates products and services to provide you access to this data so you can reverse these malignant trends before they become life threatening. These Terms of Service (“Terms”) govern your use of our electronic body monitoring products, our websites, including www.thinkbe.co, the software embedded in ThinkBe devices, the ThinkBe mobile applications, memberships and other ThinkBe services (collectively, the “ThinkBe Service”).
You must accept these Terms to create a ThinkBe account and to use the ThinkBe Service. If you do not have an account, you accept these Terms by visiting www.ThinkBe.com or using any part of the ThinkBe Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.thinkbe.CO OR USE THE ThinkBe SERVICE.
These Terms will change over time. If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.ThinkBe.com. We will notify you by email, through the ThinkBe Service, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. When you use the ThinkBe Service after a modification is posted, you are informing us that you accept the modified terms.
Any information that ThinkBe collects through your use of the ThinkBe Service is subject to the ThinkBe Privacy Policy, which is part of these Terms.
You may use the ThinkBe Service if you are over 13 years of age and are not barred from receiving services under applicable law. You may connect to the ThinkBe Service using a device that is manufactured, distributed, or sold by or on behalf of ThinkBe; the ThinkBe mobile applications; the ThinkBe Connect software; approved third-party applications; or www.ThinkBe.com (“Authorized Connections”). You may not connect to the ThinkBe Service with any device that is not manufactured, distributed, or sold by or on behalf of ThinkBe (such as a knock off or counterfeit version of a ThinkBe Product); otherwise intends to resemble or purports to be a ThinkBe Product; 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 ThinkBe Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact brandprotection@thinkbe.co.
Full use of the ThinkBe Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. ThinkBe is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the ThinkBe Service. These communications are part of the ThinkBe Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Full use of the ThinkBe Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the ThinkBe Service and it is your responsibility to ensure the equipment’s functionality.
You may post photos, exercise regimens, food logs, recipes, comments, and other content (“Your Content”) to the ThinkBe Service. You retain all rights to Your Content that you post to the ThinkBe Service. By making Your Content available on or through the ThinkBe Service you grant to ThinkBe a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute Your Content only in connection with operating and providing the ThinkBe Service.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the ThinkBe Service will not: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You also agree that Your Content will comply with the following community guidelines:
“ThinkBe 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 ThinkBe Service to you. Except for Your Content, ThinkBe Content, the ThinkBe Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the ThinkBe Service.
The ThinkBe Service is intended for your personal, non-commercial use.
ThinkBe grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the ThinkBe Content, (2) access and use the software and mobile applications provided by the ThinkBe Service, and (3) use the software that is embedded into ThinkBe products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of the ThinkBe Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the ThinkBe Content, ThinkBe Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ThinkBe or its licensors, except for the licenses and rights expressly granted 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 ThinkBe Service: (1) use, display, mirror or frame the ThinkBe Service or any individual element within the ThinkBe Service, ThinkBe’s name, any ThinkBe trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ThinkBe’s express written consent; (2) access or tamper with non-public areas of the ThinkBe Service, ThinkBe’s computer systems, or the technical delivery systems of ThinkBe’s providers; (3) test the vulnerability of any ThinkBe system or breach any security or authentication measures; (4) circumvent any technological measure implemented by ThinkBe or any of ThinkBe’s providers or any other third party (including another user) to protect the ThinkBe Service or ThinkBe Content; (5) access the ThinkBe Service or ThinkBe Content through the use of any mechanism other than through the use of an Authorized Connection, ThinkBe Service or ThinkBe API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that ThinkBe provides to you or any other part of the ThinkBe Service.
We are not obligated to monitor access or use of the ThinkBe Service, ThinkBe Content, or Your Content or to review or edit any ThinkBe Content or Your Content, but we have the right to do so for the purpose of operating the ThinkBe Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the ThinkBe Service, any ThinkBe Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the ThinkBe Content, Your Content, or your use of the ThinkBe Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the ThinkBe Service.
Our goal is to provide helpful and accurate information on the ThinkBe Service, but we make no endorsement, representation or warranty of any kind about any ThinkBe Content, information, services or recommendations. The accuracy of the data collected and presented through the ThinkBe Service is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the ThinkBe Service. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. If you rely on any ThinkBe Content or the ThinkBe Service, you do so solely at your own risk.
The ThinkBe Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the ThinkBe Service, engaging in an exercise program or changing your diet. If you experience a medical emergency, stop using the ThinkBe Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the ThinkBe Service. If you engage in any exercise program you receive or learn about through the ThinkBe Service you agree that you do so at your own risk and are voluntarily participating in these activities.
ThinkBe products have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult your doctor prior to use if you (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders. If you feel soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after using the ThinkBe Service, please discontinue use.
Use of the ThinkBe Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your ThinkBe product or service, including those located on our Use and Care page.
At ThinkBe, we respect the intellectual property rights of others and expect our users to do the same.
It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others in accordance with the U.S. Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov).
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and believe that any material available on or through the ThinkBe website, including applications, products, user-generated content, posts or materials on user forums, or any other content (collectively referred to as “Content”), infringes upon your copyrights, you may report alleged copyright infringements by providing the information in the following DMCA Notice of Alleged Infringement (“Notice”) and delivering it to ThinkBe’s Designated Copyright Agent identified below. Upon receipt of the Notice, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the Content. If we remove or disable access in response to such a notice, we may notify the owner or administrator of the Content so that he or she can make a counter notification.
Please note that filing a report of intellectual property infringement is a serious matter with legal consequences. Any person who knowingly materially misrepresents that material or activity is infringing could be liable for damages pursuant to section 512(f) of the DMCA or similar laws in other jurisdictions or countries. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. You acknowledge that if you fail to comply with all of the notice requirements below, your copyright notice may not be valid.
Deliver this Notice, with all items completed, to ThinkBe’s Designated Copyright Agent:
John Doe
c/o ThinkBe, Inc.
440 Wolfe Rd
Sunnvale, California
Phone:
Fax:
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by ThinkBe, or obtained from sources other than you. Our Feedback and Submissions Policy is also part of the Terms.
Additional terms and conditions apply to the ThinkBe membership.
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by ThinkBe and its partners. It is your responsibility to carefully review those terms and conditions.
As part of your use of the ThinkBe Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
The ThinkBe Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under ThinkBe’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
The ThinkBe Service may provide the opportunity for you to link your ThinkBe account, ThinkBe data, or the ThinkBe Service with Third-Party Services. Although we offer this opportunity, you acknowledge that any Third-Party Services that you use in connection with the ThinkBe Service are not part of the ThinkBe Service. You acknowledge that these Terms and the ThinkBe Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.
ThinkBe may change or discontinue, temporarily or permanently, any feature or component of the ThinkBe Service at any time without notice. ThinkBe is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the ThinkBe Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by ThinkBe products without prior notice to you.
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support. Upon any termination, discontinuation or cancellation of the ThinkBe Service or your account, the following provisions of these Terms will survive: Posting Your Content On The ThinkBe Service; ThinkBe’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The ThinkBe Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
THE ThinkBe SERVICE AND ThinkBe CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the ThinkBe Service or ThinkBe Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the ThinkBe Service or any ThinkBe Content. You acknowledge and agree that if you rely on any ThinkBe Content or the ThinkBe Service, you do so solely at your own risk.
You will indemnify and hold harmless ThinkBe and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the ThinkBe Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
NEITHER ThinkBe, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ThinkBe SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ThinkBe SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ThinkBe HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL ThinkBe’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE ThinkBe SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO ThinkBe FOR USE OF THE ThinkBe SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ThinkBe, AS APPLICABLE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ThinkBe AND YOU.
You agree that any dispute between you and ThinkBe arising out of or relating to these Terms of Service, the ThinkBe Service, or any other ThinkBe products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against ThinkBe, you agree to try to resolve the Dispute informally by contacting support@ThinkBe.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or ThinkBe may bring a formal proceeding.
We Both Agree To Arbitrate: You and ThinkBe agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@thinkbe.co within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Diego, California, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. You and ThinkBe will split the costs of the Arbitration proceedings in half. ThinkBe reserves the right to be awarded attorney’s fees.
Exceptions to Agreement to Arbitrate: Either you or ThinkBe may assert claims, if they qualify, in small claims court in San Diego (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the ThinkBe products or ThinkBe Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with ThinkBe on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement. Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and ThinkBe agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Diego County, California. Both you and ThinkBe consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the ThinkBe products or ThinkBe Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between ThinkBe and you regarding the ThinkBe Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ThinkBe and you regarding the ThinkBe Service and ThinkBe Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without ThinkBe’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. ThinkBe may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by ThinkBe under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the ThinkBe Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted. ThinkBe’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ThinkBe. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Please contact us if you have any questions about these Terms.
ThinkBe, Inc.
Palo Alto, CA
support@thinkbe.co