Instream Water, Inc
Terms of Service
PLEASE READ THESE TERMS OF SERVICE (THE “TERMS OF SERVICE” OR “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF INSTREAM WATER, INC. (“INSTREAM”) (COLLECTIVELY, THE “WEBSITE”), INSTREAM’S MOBILE APPLICATION(S) (THE “APP(S)”, IN ANY WAY, INCLUDING USING ANY SERVICES MADE AVAILABLE BY INSTREAM THROUGH THE APPS OR PURCHASING ANY INSTREAM PRODUCTS THROUGH THE WEBSITE OR APPS (COLLECTIVELY WITH THE APPS AND THE WEBSITE, THE “SERVICES”), YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH INSTREAM, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU ARE ACTING ON BEHALF OF, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SERVICES.
THE TERMS OF SERVICE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- Instream Services. The Services allow you to purchase NFC enabled water bottles and accessories (each a “Product”) that you can use to purchase filtered water from the designated refill stations (each a “Station”) operated by Instream. The Services and Instream logos and information displayed thereby are protected by copyright laws throughout the world. Subject to the Terms, Instream grants you a limited license to use the Services for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Instream in a separate license, your right to use any Services is subject to the Terms.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Instream; (c) you shall not use any metatags or other “hidden text” using Instream’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access the Services in order to build a similar or competitive service, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms. Instream, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by Instream pursuant to the Terms.
- Registering Your Account. In order to access certain features of the Services you may be required to register for an account (“Account”).
- Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18+) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Instream immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Instream has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Instream has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Instream reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Instream, or if you have been previously banned from use of any of the Services.
- Fees and Loading Value in Your Account.
- Fees for all Services are posted on the Website, in the Apps, or at the Station where you are purchasing the applicable Services. You agree to pay all fees for the Services that you purchase, and you hereby authorize Instream to charge you for all applicable fees by deducting the applicable fees on your account or by using your selected method of payment. All information that you provide to us or our third-party payment processor must be accurate, current, and complete. All fees exclude, and you shall be responsible for, all sales, use, excise, and other taxes applicable to the transactions contemplated by these Terms. All fees are non-refundable.
- Loading Value in Your Account. In order to purchase filtered water from a Station, you must first load a dollar value into your Account through Apps and then sync your Account with the NFC enabled features of your Products. The dollar value that you load into your Account is prepayment for the Services you purchase at participating Stations. Unless otherwise required by law or permitted by this Agreement, the dollar value stored in your account is nonrefundable and may not be redeemed for cash. The value stored in your Account is not insured by the Federal Deposit Insurance Corporation (FDIC), nor does it earn interest.
- Liability for Unauthorized Transactions. You should treat your NFC enabled Products like cash and not disclose your Account information to anyone. If your pre-loaded Product or Account information is lost or stolen, anyone who obtains possession of either may use your Product and the value stored in your Account. You are responsible for all transactions on your Account, including unauthorized . If your Product becomes lost, stolen or damaged, contact us immediately either by logging into your Account or contacting us at email@example.com.
- PRODUCTS PURCHASES
- Instream may from time to time make certain Products available through the Services.
- Order Confirmation. Instream will provide an email or other form of confirmation after receipt of your purchase order. Your receipt of an order confirmation merely confirms Instream’s receipt of your order and neither indicates Instream’s acceptance of your order nor confirms Instream’s offer to sell. Instream reserves the right to refuse or limit any order you place with us. Instream may also, in Instream’s sole discretion, limit or cancel quantities purchased per person, household or order. These restrictions may include orders placed by or under the same Account, method of payment, email address, and/or using the same billing and/or shipping address. Instream also reserves the right to limit or prohibit orders that, in Instream’s sole judgment, appear to be placed by dealers, resellers or distributors. In the event Instream makes a change to or cancels an order, Instream will attempt to notify you by contacting the email address provided at the time the order was made. If Instream cancels all or any part of your order after your method of payment has been charged, Instream will refund the billed amount.
- Shipment Confirmation and Delivery. All orders are subject to acceptance by us, and Instream will confirm such acceptance by sending you an email confirming the Products have been shipped. You may choose the method of shipment and timing of delivery for Products you order if more than one method is available, and you will be charged shipping and handling charges accordingly based on your choice. Instream will not be held liable for deliveries that are delayed due to events that are beyond Instream’s control. However, Instream will work with you to ensure a smooth delivery.
- Prices. The prices displayed for Products available for purchase via the Services represent the applicable retail prices, and do not include taxes, shipping or handling charges (to the extent applicable). Any applicable taxes, shipping or handling charges will be communicated to you before you place an order. The prices displayed on the Website are quoted in U.S. dollars. Products in your shopping cart reflect the current price displayed on the Product’s details page. Please note that this price may differ from the price displayed when the Product was first placed in your shopping cart.
- Payment. By submitting an order for any Products through the Services, you agree to pay in advance the price of the Products, plus any applicable taxes, shipping and handling and/or other charges. Payment may be made by credit card or any other method of payment Instream may make available to you. In order to make a payment, you must provide us and or third-party payment processor with valid credit card and/or other billing information and authorize us (or any third-party payment service provider engaged by us) to charge your method of payment for all orders placed and accepted via the Services.
- Product Information. Most Products displayed on the Website are available exclusively online through the Services. These Products may have limited quantities, and, because of their limited availability, stock will not and cannot be refreshed. When a Product featured on the Website is no longer in stock, Instream uses its best efforts to remove such Product from the Services in a timely manner. Should you have any questions concerning the availability of a particular Product, please contact Instream’s Customer Service by emailing
Suggested Alternate 4.6.1. Web Site Product Information. Products displayed on the Website including water bottles, silicone bands, and other merchandise may have limited quantities. If stock is not available at the time of purchase, InStream will notify you by email using the address supplied on the order and if the estimated order fulfillment period is not acceptable, we will cancel your order and refund any payment made.
Suggested Alternate 4.6.2. Refill Station Product Information. Refill stations are for the purchase of water only. Certain factors, including maintenance, utility outages, and weather, may impact the ability to supply water at all times for every location. Accordingly, InStream will make every effort to maintain water delivery and order fulfillment at all refill stations at all times but does not guarantee the availability of any or all types of water at any or all of its refill stations at any or all times.
- All Sales Final Unless Otherwise Indicated. All sales of Products are final, and unless otherwise indicated on the Website, no returns or exchanges are accepted by Instream. All payments for Products are non-refundable.
- You agree that Instream and its licensors own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Instream.
- You agree that submission of any ideas, suggestions, documents, and/or proposals to Instream (“Feedback”) is at your own risk and that Instream has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Instream a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
- App Stores. You acknowledge and agree that the availability of the Apps is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that these Terms are between you and Instream, and do not involve the App Store company. Instream, not the App Store, is solely responsible for the Apps, including the maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance and intellectual property infringement). In order to use the Apps, you must have access to a wireless or cellular 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 the Apps. You agree to comply with, and your license to use the Apps 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 Apps. You acknowledge that the App Store company and its subsidiaries are third-party beneficiaries of the Terms and will have the right to enforce them.
- Your Conduct. While using or accessing the Services you agree that you will not, under any circumstances:
- Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
- Interfere with or damage Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
- Interfere with any other user’s use of the Services;
- Take any action that may undermine our feedback or ratings systems;
- Transfer your Account and username to another party without our consent;
- Bypass any robot exclusion headers, interfere with the working of the Services, or impose an unreasonable or disproportionately large load on our infrastructure; or
- Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- User Data. You acknowledge and agree that you do not and should not have access to data regarding other users, in connection with your use of, and participation in, the Services. You are expressly prohibited from collecting any data regarding other users. Instream may terminate your use of and access to the Services at its sole discretion if it suspects your violation of this section.
- Instream may, but is not obligated to, monitor or review the Services at any time. Although Instream does not generally monitor user activity occurring in connection with the Services, if Instream becomes aware of any possible violations by you of any provision of the Terms, Instream reserves the right to investigate such violations, and Instream may, at its sole discretion, immediately terminate your license to use the Services, or change, in whole or in part, without prior notice to you.
- Third-Party Services. The Services may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). Such Third-Party Websites are not under the control of Instream. Instream is not responsible for any Third-Party Websites & Ads. Instream provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website or App, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- You agree to indemnify and hold Instream, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Instream Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Services; (b) your violation of the Terms; (c) your violation of any rights of another party, including any other users; or (d) your violation of any applicable laws, rules or regulations. Instream reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Instream in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
- Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES (AND ANY CONTENT AVAILABLE THROUGH THE SERVICES) IS AT YOUR SOLE RISK, AND THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. INSTREAM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIABILITY LIMITATION. INSTREAM’S CUMULATIVE LIABILITY TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, THE APPLICATION, THE WEBSITE, THE SERVICES, OR ANY CONTENT AVAILABLE THROUGH THE SERVICES, , WHICHEVER IS GREATER. IN NO EVENT WILL INSTREAM BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT INSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OF THESE TERMS.
CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
- APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for household use. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
- BASIS OF BARGAIN. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between you and us. Instream would not be able to provide the Apps or the Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Instream’s suppliers as well.
- These Terms are effective as of the date you accept them (as provided in the preamble) and will continue until terminated as provided herein. We may immediately terminate these Terms and the license granted hereunder if you fail to comply with these Terms or if we decide to cease making the Apps or the Services generally available. Upon such termination, you must immediately stop using the Apps. You may terminate these Terms and the license granted hereunder at any time by destroying or deleting all copies of the Apps. Sections 1.2, 5, and 11 – 17 will survive any termination of these Terms.
- General Provisions
- You hereby release Instream Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services or any interaction between you and any User. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”
- The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Instream’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Instream shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Limitations Period. YOU AND INSTREAM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE APPS, OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Dispute Resolution.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Instream that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Instream, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Instream should be sent to: 409 N. Tejon Street, Suite 202, Colorado Springs, CO 80903. After the Notice is received, you and Instream may attempt to resolve the claim or dispute informally. If you and Instream do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Instream pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Instream, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim (including any claim regarding the enforceability of this Arbitration Agreement or any unconscionability in connection with these Terms). The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Instream.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Instream in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND INSTREAM WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Instream.
- Small Claims Court. Notwithstanding the foregoing, either you or Instream may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
- Where Instream requires that you provide an e-mail address, you are responsible for providing Instream with your most current e-mail address. In the event that the last e-mail address you provided to Instream is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Instream’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Instream at the following address: 409 N. Tejon Street, Suite 202, Colorado Springs, CO 80903. Such notice shall be deemed given when received by Instream by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
- Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Instream are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Instream products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms and such terms will either be listed in the Terms of Service or will be presented to you for your acceptance before you use the supplemental Service.
- Amendment. Please note that the Terms are subject to change by Instream in its sole discretion at any time. When changes are made, Instream will make a new copy of the Terms of Service available on the Apps or on the Website. We will also update the “Last Updated” date on the Terms of Service. If we make any material changes, and you have registered with us to create an Account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Instream may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Apps and/or Services constitutes your acceptance of such change(s).
Last Updated: September 23, 2018
- Types of Data We Collect. “Personal Data” means data that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing data. “Anonymous Data” means data that is not associated with or linked to your Personal Data; Anonymous Data does not, by itself, permit the identification of individual persons. We collect Personal Data and Anonymous Data, as described below. We collect information from you in a variety of ways: when you interact with our Apps or Website, when you register to use any part of the Services, and when you use the Services.
- Services Registration and Use.
- Account. We may collect Personal Data from you, such as your first and last name, e-mail address, phone number, nickname, physical address, and password when you create an account to log in to the Services (“Account”). We may also collect your device advertising identifier.
- Preferences. We may enable you to store certain preferences in the Services or your Account, such as, your preferred type and volume of water for dispensing at Stations.
- Usage Data. Information about your interactions with the Services which may include the amount water dispensed to you at each location. This also may include details of advertising you receive through the Services.
- Location and Payment.
- Payment. When you choose to purchase and pay for certain Products or Services, we will collect all information necessary to complete the transaction, including your name, credit card information, and billing information (if we did not collect such information when you initially registered for an Account), date, time, and amount of payment.
- Location. When the Apps are in use, they may collect your precise location, through use of GPS on your mobile device and possible other signals such as nearby wi-fi access points or Bluetooth-enabled devices. We may use this information to, for example, determine whether there are Stations near you.
- General – Voluntary Disclosures by You.
- Contact Us. If you provide us feedback or contact us via e-mail, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply.
- Other Collections. We may also collect Personal Data at other points in our Services that state that Personal Data is being collected.
- General – Automatic Data Collection.
- IP Address. To make our Services more useful to you, our servers (which may be hosted by a third-party service provider) collect information from you, including your browser type, operating system, Internet Protocol (“IP”) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, and/or a date/time stamp for your visit. We may associate your IP address with your account and your other Personal Data.
- Mobile Services. We may also collect non-personal data from your mobile device if you have downloaded our Apps. This information is generally used to help us deliver the most relevant Services to you. Examples of information that may be collected and used include your geographic location, how you use the Apps, and information about the type of mobile device you use. In addition, in the event our Apps crash on your mobile device, we may receive information about your mobile device model software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our Apps. This information is sent to us as aggregated information and is not traceable to any individual and cannot be used to identify an individual.
- Services Registration and Use.
- Use of Your Personal Data.
- General Use. In general, Personal Data we collect is used to provide the Services to you, enable your use of the Services, respond to requests that you make, or to aid us in serving you better. We use your Personal Data in the following ways:
- facilitate the creation of and secure your Account;
- identify you as a user in our system;
- provide improved administration of our Services;
- provide the Services you request;
- improve the quality of experience when you interact with our Services;
- send you a welcome e-mail to verify ownership of the e-mail address provided when your Account was created;
- send you administrative e-mail notifications, such as security or support and maintenance advisories;
- respond to your inquiries related to employment opportunities or other requests;
- make telephone calls to you, from time to time, as a part of secondary fraud protection or to solicit your feedback;
- send newsletters, surveys, offers, and other promotional materials related to our Services and for other marketing purposes of Company;
- send mobile application notifications to you; and
- display promotions to you, including promotions relevant to your location.
- User Testimonials. If you send us a testimonial about our Services, we may use and disclose it (including your first name) in our discretion. However, we will obtain your consent prior to posting your full name along with the testimonial.
- Creation of Anonymous Data. We may create Anonymous Data records from Personal Data by excluding information (such as your name) that makes the data personally identifiable to you. We use this Anonymous Data to analyze usage patterns so that we may enhance our Services and improve Website and App navigation. We reserve the right to use Anonymous Data for any purpose and disclose Anonymous Data to third parties in our sole discretion.
- General Use. In general, Personal Data we collect is used to provide the Services to you, enable your use of the Services, respond to requests that you make, or to aid us in serving you better. We use your Personal Data in the following ways:
- Third Party Service Providers. We may share your Personal Data with third party service providers, for example: to provide you with the Services that we offer you through our Apps or Website; to conduct quality assurance testing; to facilitate creation of accounts; and to provide technical support.
- Employers. If you are part of a corporate or employer sponsored wellness programed that is partnered with the Company, then such employers or the related wellness program providers may have access to certain information regarding your use of the Services. For example, we may provide your employer or the wellness program provider with information regarding the water dispensed to you at applicable Stations.
- Third Parties for Marketing. We may enter into agreements with companies to disclose Personal Data to them for their marketing purposes.
BECAUSE WE DO NOT CONTROL THE PRIVACY PRACTICES OF THESE THIRD-PARTY COMPANIES, YOU SHOULD READ AND UNDERSTAND THEIR PRIVACY POLICIES.
- Notice to California Residents – Your California Privacy Rights.
(AS PROVIDED BY CALIFORNIA CIVIL CODE SECTION 1798.83)
A CALIFORNIA RESIDENT WHO HAS PROVIDED PERSONAL DATA TO A BUSINESS WITH WHOM HE/SHE HAS ESTABLISHED A BUSINESS RELATIONSHIP FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES (A “CALIFORNIA CUSTOMER”) MAY REQUEST INFORMATION ABOUT WHETHER THE BUSINESS HAS DISCLOSED PERSONAL INFORMATION TO ANY THIRD PARTIES FOR THE THIRD PARTIES’ DIRECT MARKETING PURPOSES. IN GENERAL, IF THE BUSINESS HAS MADE SUCH A DISCLOSURE OF PERSONAL DATA, UPON RECEIPT OF A REQUEST BY A CALIFORNIA CUSTOMER, THE BUSINESS IS REQUIRED TO PROVIDE A LIST OF ALL THIRD PARTIES TO WHOM PERSONAL DATA WAS DISCLOSED IN THE PRECEDING CALENDAR YEAR, AS WELL AS A LIST OF THE CATEGORIES OF PERSONAL DATA THAT WERE DISCLOSED. CALIFORNIA CUSTOMERS MAY REQUEST FURTHER INFORMATION ABOUT OUR COMPLIANCE WITH THIS LAW BY E-MAILING HELLO@INSTREAMWATER.COM. PLEASE NOTE THAT WE ARE REQUIRED TO RESPOND TO ONE REQUEST PER CALIFORNIA CUSTOMER EACH YEAR AND WE ARE NOT REQUIRED TO RESPOND TO REQUESTS MADE BY MEANS OTHER THAN THROUGH THIS E-MAIL ADDRESS.
- Your Choices Regarding Information. You have several choices regarding the use of information on our Service:
- App Notifications. We may send you notifications on your mobile device. You may disable these notifications in the settings of your device.
- Cookies. If you decide at any time that you no longer wish to accept Cookies from our Service for any of the purposes described above, then you can instruct your browser, by changing its settings, to stop accepting Cookies or to prompt you before accepting a Cookie from the websites you visit. Consult your browser’s technical information. If you do not accept Cookies, however, you may not be able to use all portions of the Service or all functionality of the Service. If you have any questions about how to disable or modify Cookies, please let us know at the contact information provided below.
- Changing or Deleting Your Personal Data. You may change any of your contact information in your Account by editing your profile within your Account or by sending an e-mail to us at the e-mail address set forth below. You may request deletion of your Personal Data by us, and we will use commercially reasonable efforts to honor your request, but please note that we may be required to keep such information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete any information, it will be deleted from the active database, but may remain in our archives. We may also retain your information for fraud or similar purposes.
- Mobile Apps. You can stop all collection of information by the Mobile App by uninstalling it. You may use the standard uninstall processes as may be available as part of your mobile device.
- Security of Your Personal Data.
- The Company is committed to protecting the security of your Personal Data. We use a variety of industry-standard security technologies and procedures to help protect your Personal Data from unauthorized access, use, or disclosure. We also may require you to enter a password to access your Account information. Please do not disclose your Account password to unauthorized people. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while Company uses reasonable efforts to protect your Personal Data, Company cannot guarantee its absolute security.
- For payments using the Services, we use the payment services of a third-party payment processor. We do not process, record or maintain your.
- Transfer and Storage of Data Abroad. We do not intentionally offer, market, target, or direct our products to people living in the European Economic Area. However, if you are using our Services from a country other than the country in which our servers are located, your communications with us may result in the transfer of information across international boundaries. By visiting the Website or using any Apps or Services and communicating electronically with us, you consent to such transfers.
- Children Under 13. Our Services are not directed to children under age 13. If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us using the details below. If we learn that personal data has been collected from a child under 13, then we will delete such information from our files as soon as reasonably practicable.
Instream Water, Inc.
409 N. Tejon Street, Suite 202
Colorado Springs, CO 80903
Last Revised: September 26, 2018