Terms and Conditions of Use
Last Revised: December 8, 2016
Welcome to the 38Plank Family! These Terms and Conditions of Use are designed to create a positive, law-abiding community of our athletes. By using 38Plank’s products and services, you are agreeing to all the terms below.
38Plank, Inc. and its affiliates and subsidiaries offer a variety of products and services, including the 38Plank website, application, content, and all other current and future digital products and service offerings we make available. We are dedicated to helping people reach their health and fitness goals and believe that everyone using our platform to better themselves is an athlete. This is why we refer to online and offline community members as “athletes.”
These Terms and Conditions of Use (“Terms”) govern your access to and use of our Services. Please read the Terms carefully before using our Services, as they are a legally binding contract between you and 38Plank. Note that we have included several summaries at the top of each section – these summaries are not a part of the contract itself, but are intended to emphasize key sections and help you follow the text.
Please feel free to contact us through our Support Team if you have any questions or suggestions.
1. Use of the Services and Your Account
(a) Who can use the 38Plank Services
38Plank supports and encourages athletes of all ages, but you must be at least 13 to use most of the Services, and at least 18 to use the 38Plank app.
You must be at least eighteen (18) years of age to use MyFitnessPal. and at least thirteen (13) years of age to use the other Services. If you are between the ages of 13-18, you may use the Services (excluding the 38Plank app) only with the supervision and consent of a parent or guardian. No individual under these age limits may use the Services, provide any Personal Data to 38Plank, or otherwise submit Personal Data through the Services (e.g., a name, address, telephone number, or email address).
(b) Your Account
You may need to create a 38Plank account to access the Services, and it's important that the information associated with your account is accurate and up-to-date (particularly your email address – if you ever forget your password, a working email address is often the only way for us to verify your identity and help you log back in).
You may need to register for a 38Plank account in order to access or use certain Services. Your account may automatically provide you access and means to use new Services that we create.
When you create an account for any of our Services, you must provide us with accurate and complete information as prompted by the account creation and registration process, and keep that information up to date. Otherwise, some of our Services may not operate correctly, and we may not be able to contact you with important notices.
If you create an account, you are responsible for maintaining the confidentiality of any and all actions that take place while using your account, and you must notify our Support Team right away of any actual or suspected loss, theft, or unauthorized use of your account or account password. We are not responsible for any loss that results from unauthorized use of your username and password, with or without your knowledge.
If you forget your password and have an existing 38Plank account, click on the “Sign In” or “Log In” link at the top of the page. You will be taken to the Sign In page, where you can select “Forgot Password” to create a new password.
If you are a resident of the European Union: You have the right to delete your account with us by contacting our Support Team. If you choose to permanently delete your account, the non-public Personal Data that we have associated with your account will also be deleted.
(c) Service Updates, Changes and Limitations
Our Services are constantly evolving to be more useful for our athletes and community. With new products, services, and features launching all the time, we need the flexibility to make changes, impose limits, and occasionally suspend or terminate certain offerings. We may also update our Services, which might not work properly if you don’t install the updates.
The Services change frequently, and their form and functionality may change without prior notice to you. We may also impose limits on certain Services or restrict your access to part or all of the Services without notice or liability.
We may also from time to time, as we see fit, develop and provide updates for certain Services. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain portions of our Services may not properly operate if you do not install all Updates. These Updates may include updated versions of our applications, which may automatically electronically upgrade the versions used on your device. You expressly consent to such automatic Updates. Further, you agree that the Terms (and any additional modifications of the same) will apply to any and all Updates to the Services. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Service.
(d) Service Monitoring and Suspension
We reserve the right to refuse service to anyone, and can monitor, terminate or suspend our Services or your account at any time.
We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content. We may also deactivate, terminate or suspend your account at any time: (1) if we, in our sole discretion, determine that you are or have been in violation of these Terms or the spirit thereof, (2) if we, in our sole discretion, determine that you have created risk or possible legal exposure for 38Plank or any other Athlete, (3) in response to requests by law enforcement or other government agencies, (4) upon discontinuance or material modification of any Services, or (5) due to unexpected technical issues or problems. We will endeavor to notify you by email or at the next time you attempt to access your account after any such deactivation, termination or suspension.
Please let us know right away if you believe your account has been hacked or compromised.
We care about the security of our athletes. While we work hard to protect the security of your Personal Data, User-Generated Content, and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify our Support Team immediately of any actual or suspected breach or unauthorized access or use of your account.
(f) Consent to Receive Communications
We or other athletes in the community may contact you in connection with your use of the Services.
After signing up for an account, you may receive periodic email communications regarding the operations of our Services. You cannot opt out of receiving these communications while you continue to use our Services.
You may also receive periodic promotions and other offers or materials that we believe might be of interest to you. You can opt out of receiving these promotional messages at any time by following the unsubscribe instructions contained in the message footer, or changing the email preferences in your account.
By finding and connecting with your friends and other athletes in our community, you may receive electronic communications, including messages from them (depending on your preferences, you may receive notification of these messages via email, in the website/application, and/or as a push notification).
(a) Your Privacy
(b) Spreading the Word
We hope you enjoy using our Services and encourage you to share your enthusiasm for them with your friends. If you elect to use the features in our Services to tell a friend about the Services, we will ask you to provide your friend’s email address or social media profile, which we may then use to contact your friend about the Services. We may store the information you provide for a period of time, but we will not post this information publicly. You represent that you are authorized to provide any third-party contact information that you provide to us for referrals.
3. Ownership and Use of Content
Content is the stuff that shows up on your display when you use our Services. User-Generated Content is any Content that is created by you or other athletes, and 38Plank Content is all other Content.
For purposes of these Terms, (i) the term “Content” means any creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, text, ideas, communications, replies, “likes,” comments, information, data, software, scripts, executable files, graphics, maps, routes, geo-data, workouts and workout data, training plans, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, patents, sounds, applications and any intellectual property therein, any of which may be generated, provided, or otherwise made accessible on or through the Services; (ii) the term “User-Generated Content” means any Content that an athlete (that includes you!) submits, transfers, or otherwise provides to or through the use of the Services. Content includes, without limitation, all User-Generated Content; and (iii) the term “UA Content” means all Content that is not User-Generated Content.
You own the Content that you create, and we own the Content that we create. Please don’t post other people’s work without permission.
All copyright, trademarks, design rights, patents and other intellectual property rights (registered and unregistered) in and on the Services and 38Plank Content belong to 38Plank and/or its partners or applicable third parties. Each athlete retains ownership, responsibility for, and/or other applicable rights in the User-Generated Content that they create, and 38Plank and/or its partners or third parties retain ownership, responsibility for and/or other applicable rights in all 38Plank Content. Except as expressly provided in the Terms, nothing in the Terms grants you a right or license to use any 38Plank Content, including any content owned or controlled by any of our partners or other third parties. You agree that you will respect the intellectual property rights of others, and represent and warrant that you have all of the necessary rights to grant 38Plank a license (described further in part (d) below) for all User-Generated Content you submit in connection with the Services.
(c) Our License to You
You are welcome to access and use our content, products and services. We work hard to provide a great experience for our athletes, so please respect our intellectual property rights and only use our Services the way they’re intended to be used. This includes not using our Services for commercial purposes without our permission, or doing bad things to us or other athletes.
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and the 38Plank Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws. We grant you a limited, revocable, personal, non-transferable, and non-exclusive right and license to access and use the Services and 38Plank Content, provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the 38Plank Content or Services to anyone else. This license is subject to the Terms, including our Community Guidelines and the following:
38Plank Content. Except as expressly permitted by applicable law or authorized by 38Plank, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, the Services’ software, or any 38Plank Content offered as part of the Services (other than User-Generated Content), in whole or in part. Please do not download, copy, or save 38Plank Content, except (i) as expressly permitted by the functionality of certain Services (e.g., printed maps) as provided for in the specific guidelines and/or additional terms applicable to those Services, or (ii) solely for personal use or your records.
Commercial Usage of the Services. The Services, with the exception of certain products and services provided through the 38Plank-branded websites are intended only for your personal, non-commercial use. You may not use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons, such as advertising sales, or otherwise undertake any endeavor aimed at deriving revenue. For example, you may not take the results from a search of the Services and reformat and display them, or mirror our home pages or results pages on your website. Moreover, you may not “meta-search” our Services.
Linking to the Services. If you would like to link to our Services on your website or application, please follow these rules: (i) any link to the Services must be a text only link clearly marked “38Plank” (without the use of any other trademark, logo copyright or any other intellectual property asset owned or controlled by 38Plank) or in some other format directed by 38Plank (ii) the appearance, position and other aspects of the link may not damage or dilute the goodwill associated with our marks, (iii) the link must “point” to the root domain name of the Services and not to other pages within the Services, (iv) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with 38Plank, (v) when selected, the link must display the Service on full-screen and not within a “frame” on the linking website or service, and (vi) 38Plank reserves the right to revoke its consent to the link at any time and in its sole discretion, and upon our notification to you of such revocation of consent, you agree to promptly remove the relevant link from your website or application.
Confusion or Impersonation. Do not impersonate any person or entity, and/or falsely claim an affiliation with any person or entity.
Disruptions, Exploits, or Resource Abuse. Do not interfere with or damage operation of the Services, including through unauthorized use, disruption, automated attacks, exploitation, or abuse of our resources.
Automated Querying. Do not send automated queries of any sort to the systems and networks we use to provide the Services without our express written permission. “Sending automated queries” includes but is not limited to:
using any software that sends automated queries to the systems and networks we use to provide the Services that seek bulk data, or determine how many saved routes or athletes we have for various queries;
“meta-searching” the Services and the systems and networks we use to provide the Services; and
performing “offline” searches relative to the Services.
Unlawful Uses. You may only use the 38Plank Content and Services for legally permitted purposes. You may not use the Services or any 38Plank Content or other information displayed on or made available by the Services to stalk, harass, abuse, defame, threaten, or defraud others.
(d) Your License to Us
When you post content in connection with the Services, it still belongs to you – however, you’re giving us permission to use that content in certain ways in connection with our Services and make the content available to others. We can edit or remove your content from our products and services at any time for any reason.
When you provide User-Generated Content to 38Plank through the Services, you grant 38Plank and our athletes a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), commercialize, create derivative works of, and otherwise exploit such User-Generated Content in connection with any and all Services. You acknowledge and agree that: (a) we have the right to arrange the posting of User-Generated Content in any way we desire; (b) 38Plank has no obligation to provide you with any credit when using your User-Generated Content, but if 38Plank chooses to provide you with credit, the size and placement of the credit is at our sole discretion; and (c) you are not entitled to any compensation or other payment from us in connection with the use of your User-Generated Content.
The rights you grant in this license are for the limited purposes of allowing 38Plank to operate the Services in accordance with their functionality, improve the Services, develop new Services, and to allow other community members to use the Services in accordance with their intended function.
We reserve the right to monitor, remove or modify User-Generated Content for any reason and at any time, including User-Generated Content that we believe violates these Terms, the Community Guidelines, and/or our policies.
(e) Content Retention
Please keep in mind that when you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it in the future.
(f) User-Generated Content and Eligibility to Participate in Certain Sports Organizations
Things that happen online may have consequences in the real world.
Certain sports organizations have rules on amateurism and eligibility that could potentially be implicated if you post User-Generated Content within the Services, even User-Generated Content that you believe is noncommercial in nature. It is your responsibility to determine whether posting User-Generated Content within the Services will affect your eligibility to participate in any sport under any applicable rules of any sports organization.
(g) Your Feedback
We appreciate your feedback and can freely use your suggestions to make 38Plank and athletes around the world better. Thank you and keep the ideas coming!
We value hearing from our athletes, and are always interested in learning about ways we can make 38Plank awesome. If you choose to submit comments, ideas or feedback, you should submit the idea through our Idea Submission website at https://uaideas.force.com/, and you agree that we are free to use the ideas you submit without any restriction or compensation to you. By accepting your submission, 38Plank does not waive any rights to use similar or related feedback previously known to 38Plank, developed by our employees, or obtained from sources other than you. You certify and represent that the information or feedback you submit to us through the Services is not confidential or proprietary information.
We love your support and imitation is flattering, but please respect our trademarks and brands.
38Plank owns or licenses all 38Plank trademarks, service marks, branding, logos, and other similar assets (the “38Plank Trademarks”). Being a 38Plank athlete is a badge of honor, and we encourage you to proudly wear our gear and display the 38Plank Trademarks for personal use. However, please do not copy, imitate, modify, display or otherwise use the 38Plank Trademarks (in whole or in part) for purposes other than personal use or in connection with any web or mobile product or service that is not authorized by 38Plank, without our prior written approval.
(i) Accuracy and Reliance on Content
Don’t believe everything you read on the Internet. If you are concerned about the accuracy of information available through the Services, undertake your own research and investigation.
We make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any Content available through the Services, and we make no commitment to update such Content.
In addition, User-Generated Content, including advice, statements, or other information, including, without limitation, food, nutrition and exercise database entries, are not produced by 38Plank, and should not necessarily be relied on. User-Generated Content available in connection with the Services, whether publicly posted or privately transmitted, is the sole responsibility of the athlete from whom such User-Generated Content originated. We do not endorse any opinions or recommendations contained in User-Generated Content. All information is provided “as is” without any representation, warranty or condition as to its accuracy or reliability.
In particular, 38Plank does not (i) guarantee the accuracy, completeness, or usefulness of any fitness or nutritional information; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any such fitness or nutritional information. Under no circumstances will 38Plank be responsible for any loss or damage resulting from your reliance on fitness and nutritional information. You are solely responsible for ensuring that any fitness or nutritional information is accurate, complete and useful.
4. Community Guidelines
(a) Interactive Areas
Our Services often contain community features. When you post content through these features that content may become public.
38Plank is a community dedicated to helping all athletes reach their fitness and wellness goals. Some of our Services may include reviews, discussion forums, conversation pages, blogs or other interactive areas or social features that allow you and other athletes to post User-Generated Content and interact with one another (“Interactive Areas”). You are solely responsible for your use of the Interactive Areas and for any User-Generated Content that you post, including the transmission, accuracy and completeness of the User-Generated Content. As the Interactive Areas are often public, you understand that your User-Generated Content may be made and remain public.
We may, but do not always, monitor our community features, and ultimately you are responsible for your interactions with other athletes. So please use good judgment and play fair.
You are solely responsible for your interactions with other athletes, whether online or in person, including but not limited to comments, challenges, and friendly competition. We assume no responsibility or liability for any loss or damage resulting from any interaction with other athletes who employ the Services, individuals you meet through the Services, or individuals who find you because of Content posted on, by or through the Services. You agree to take reasonable precautions in all interactions with any athletes or individuals you interact with in connection with the Services. You are solely responsible for your involvement with any athletes or individuals you interact with in connection with the Services. 38Plank is under no obligation to become involved in any disputes between its athletes, but may do so at its own discretion.
(b) Community Guidelines
Our Services are designed as a safe and supportive environment to help you reach your fitness and wellness goals. Athletes cannot use our services to post pornographic material, harass people, send spam, violate intellectual property rights, or do other inappropriate stuff. Be reasonable and act responsibly.
Our Services are intended to be a safe and supportive community for all athletes. To help everyone feel safe and to maintain that positive environment, we require everyone to agree to, and follow, these rules (the “Community Guidelines”) when posting User-Generated Content and using the Services. By using the Services you agree that your User-Generated Content and use of the Interactive Areas will not violate the Community Guidelines. If you violate the Community Guidelines, we reserve the right to terminate your access to the Services.
No Discriminatory or Abusive Content, or Personal Attacks or Insults.
Stay positive – don’t spread hate messages, and don’t post Content that is threatening, hurtful, harassing, embarrassing, or annoying to other members of the community.
No derogatory references to sex, gender, age, weight, body type, disability, ethnicity, religion, or sexual orientation, or endorsement of violence against any person or group, even if couched in humor, will be permitted. This includes expressing stereotypes about any group or community.
You can respectfully disagree with a message, post or topic, but please do not attack other athletes by mocking or insulting them. If you are attacked by another athlete, and you reciprocate, you may also be subject to the same consequences.
No Hijacking, Trolling, or Flame-baiting. If you are participating in our forums, please stay on-topic in an existing thread, and post new threads in the appropriate forum. Taking a thread off-topic is considered hijacking. Please either contribute politely and constructively to a topic, or move on without posting. This includes posts that encourage the drama in a topic to escalate, or posts intended to incite an uproar from the community.
No Promotion of Unsafe Weight-Loss Techniques or Eating Disorders. One of our goals is to provide athletes with the tools to achieve their weight management goals at a steady, sustainable rate. Use of the Services to promote, glamorize, or achieve dangerously low levels of eating is not permitted. Accordingly, please do not contribute the following types of Content, which may be removed without warning:
Content intended to promote potentially unsafe or controversial weight loss products or procedures, including non-medically prescribed supplements or MLM.
Profiles, groups, messages, posts, or wall comments that encourage anorexia, bulimia, or very low calorie diets. This includes positive references to ana/mia, purging, or self-starving.
Photos intended to glamorize extreme thinness.
No Explicit Content. Don’t post Content that is defamatory, obscene, pornographic, offensive, hateful, inflammatory, or promoting sexually explicit material.
No Harm to Minors. Don’t use the Services in a way that harms minors (or anyone, really).
No Sending Spam and Junk Mail. Don’t spam people via posts, replies, or messages.
No Illegal Content. Don’t advocate, promote, or assist any fraudulent or illegal act (e.g., violence, impersonation and computer misuse).
No Soliciting Personal Data. Please don’t post or solicit Personal Data regarding or from any third party, including photographs, telephone numbers, street addresses, last names, email addresses and passwords in the Interactive Areas.
No Public Posting of Private Conversations. Don’t publicly post an email or private message from any other athlete, moderator or administrator.
No Breach of Legal Duty. Don’t post Content that is in breach of any contractual or other legal duty owed to a third party.
No Deceptive or Fraudulent Links. Don't post deceptive or fraudulent links. This includes giving links misleading descriptions, putting the wrong “source” field in a post, setting misleading click-through links on images, or embedding links to interstitial or pop-up ads.
No Intellectual Property Infringement. Respect the intellectual property of others. If you aren’t allowed to use someone else's proprietary work or likeness (either by license or by legal exceptions and limitations such as fair use), please don’t post it. In particular, if you have any reason to believe that User-Generated Content you see on our Services is infringing your copyrights or the copyrights of others, please see the Copyright/DMCA section of our Terms.
No Impersonating 38Plank or Others. Don’t post Content that is likely to deceive any person or be used to impersonate any person, or to misrepresent your identity or affiliation with any person, including with 38Plank. Creating an account for the purposes of deceiving other athletes or to work around a Services suspension is not permitted and will be grounds for a permanent ban from the Services.
Other. Don’t post Content that contains anything that, in 38Plank’s sole determination, is objectionable or inhibits any other person from using or enjoying the Services, or that may expose 38Plank or our athletes to any harm or liability of any kind.
If we determine that you are violating the Community Guidelines or otherwise have breached the Terms, we may take actions to address the issue, including, but not limited to, terminating your right to use the Services, removing your User-Generated Content, taking legal action against you (in which case you agree that we may recover reasonable costs and attorneys’ fees) or disclosing information to law enforcement authorities. We reserve the right to enforce, or not enforce, these Community Guidelines in our sole discretion, and they don’t create a duty or contractual obligation for us to act in any particular manner.
(c) Objectionable User-Generated Content
It’s a big bad Internet out there, and people post inappropriate stuff on user-generated content sites all the time. We do our best to keep the community safe and secure (athletes respecting the Community Guidelines helps), but you still might run into bad stuff before we have a chance to take it down. If you spot any objectionable Content, please let us know.
While we require all of our athletes to comply with the Community Guidelines and reserve the right to monitor for violations, we ultimately cannot guarantee they will comply with the Community Guidelines or these Terms. If you believe any Content submitted to our Services violates the Community Guidelines, or if you know or suspect that someone is misusing your User-Generated Content, please report it to the Customer Support Team. By consenting to the Terms, you understand and acknowledge that when you access or otherwise use the Services:
You may be exposed to User-Generated Content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User-Generated Content.
You may be exposed to User-Generated Content shared by other athletes that is offensive, indecent, or otherwise objectionable.
We cannot be held responsible for any injury or harm to you resulting from objectionable User-Generated Content or another athlete’s failure to comply with our Community Guidelines.
5. Copyright/ DMCA
We respect copyright laws. If anything is wrong, please send an email with all the details to firstname.lastname@example.org.
If you believe that User-Generated Content or 38Plank Content infringes copyright under U.S. or other national law, please notify our Copyright Agent immediately using the contact information provided herein. It is our policy to investigate any allegations of copyright infringement brought to our attention. Please provide us with the following information in your notice of a suspected copyright violation:
Identification of the work or material being infringed.
Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
Your notice must be signed (physically or electronically) and must be addressed as follows:
c/o Under Armour, Inc.
1020 Hull Street
Baltimore, MD 21230
You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the athlete who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or www.chillingeffects.org/copyright for more information about how to prepare or respond to a DMCA notice.
6. Third Party Links and Services
Our Services may link to, interact with or be available on third-party services or products such as social media providers and third-party devices. If you access such third-party services or products, be aware that different terms and privacy policies may apply to your usage of such services.
(a) Third-Party Services and Logins
(b) Third-Party Applications
You may be able to access certain third-party links, applications or content (“Third-Party Applications”) via accounts related to our Services. If you choose to access these Third-Party Applications, you may be requested to log-in and sync your accounts with such applications. You are in no way obligated to use any Third-Party Applications, and your access and use of such applications is entirely at your own risk. If you opt to use Third-Party Applications via your account with us, they may gain access to certain information that you have provided to us, including Personal Data, and they will use, store, and disclose such information in accordance with their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third-Party Applications that you choose to access through your accounts with us. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third-Party Applications. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third-Party Applications.
(c) Third-Party Content
Our Services may contain links to third-party websites, content, advertisers, services, promotions, special offers, or other events or activities (“Third-Party Content”) that are not owned or controlled by us. We do not endorse or assume any responsibility for Third-Party Content. If you access or pay for Third-Party Content, you do so at your own risk and you agree that we have no associated liability.
(d) Third Party Products
Our Services may be accessed on third-party devices or other products (“Third Party Products”), and your ability to use certain features of the Services may require you to purchase Third-Party Products (e.g., fitness trackers). While we may recommend, promote, or market the products of certain partners, we have no responsibility for your acquisition or use of any Third-Party Products, and we do not guarantee that Third-Party Products will function with the Services or will be error-free. We hereby disclaim liability for all Third-Party Products, including any Third-Party Products offered by our partners.
(e) Third-Party Services, Activities, and Events
Our Services may include the ability to discover, access or participate in certain services, activities, or events (“Third-Party Activities”). Third-Party Activities are offered and provided by Third Parties, not 38Plank Your attendance at and participation in Third-Party Activities is solely at your own risk. 38Plank will not be liable for any act, error or omission of any Third Party, including, without limitation, any which arises out of or is any way connected with an athlete’s attendance, use of or participation in any Third-Party Activities initially discovered, booked or registered for via the Services, or the performance or non-performance of any Third Party in connection with the Services. 38Plank is not an agent of any provider of Third-Party Activities.
7. Mobile Services
While we strive to make our applications available on many platforms, we can’t guarantee that our applications are compatible with your device (though please let Customer Support know if you have a question or problem; we want to help). If you use our applications, your standard data and messaging rates will apply, and the rules of the app store from which you are downloading will also apply.
(a) Wireless Carrier and Device Considerations
To use or access our applications, you will need a compatible device. We also cannot guarantee that the applications will be compatible with, or available on, your device. We do not charge for use of some basic applications; however, you may need to pay some fees to use certain premium applications or features. Further, your phone company’s normal messaging, data, and other rates and fees will still apply.
(b) Text and Mobile Messaging Express Consents
By downloading or using our applications, you expressly agree that we may communicate with you regarding transactions you have initiated on the Services or respond to your communications to us through the Services by SMS, MMS, text message, or other electronic means directed to your device and that certain information about your usage of the applications may be communicated to us.
(c) Mobile Application License
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use our applications downloaded directly from a legitimate marketplace, solely in object code format and solely for your personal use for lawful purposes. With respect to any open source or third-party code that may be incorporated in the applications, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
(d) App Stores
If you download our applications from a third-party app store (the “App Provider”), you acknowledge and agree that:
The Terms are an agreement between us, and not with the App Provider. As between 38Plank and the App Provider, 38Plank is solely responsible for the applications;
The App Provider has no obligation to provide any maintenance and support services with respect to the applications;
In the event of any failure of the applications to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider may refund the purchase price for the applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be, as between 38Plank and the App Provider, 38Plank’s responsibility;
The App Provider is not responsible for addressing any claims you have relating to the applications or your possession and use of the applications;
If a third party claims that an application infringes another party’s intellectual property rights, as between the App Provider and 38Plank, 38Plank will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms;
The App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license to the applications. Upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the applications against you as a third-party beneficiary thereof; and
You must also comply with all applicable third-party terms of service when using the applications.
10. Physical Activities
It’s important to us that athletes stay healthy while training. Please be responsible and use your best judgment and common sense. We provide our Services for information purposes only, and can’t be held liable if you get injured or something goes wrong. In particular, while most of the content posted by the other athletes in our community is helpful, it is coming from strangers on the Internet and should never trump good judgment or actual medical advice.
(a) Safety First
38Plank cares about your safety. You should consult with your healthcare provider(s) and consider the associated risks before using our Services in connection with any physical activity, wellness or fitness program. By using our Services, you agree, represent and warrant that you have received consent from your physician to participate in wellness and fitness programs, workouts, exercises or any of the related activities made available to you in connection with the Services. Everyone’s condition and abilities are different, and participating in the activities promoted by our Services is at your own risk. If you choose to participate in these activities, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such activities. Activities promoted by the Services may pose risks even to those who are currently in good health.
You understand and agree that we will not carry out and are not responsible for any physical inspection, supervision, preparation, execution or conduct of any activities related to or accessed or discovered via the Services (e.g., featured, official or community created challenges; routes; friendly competitions or similar activities; any single or group training activities; any Third-Party Activities or other events or activities that utilize our Services). Maps, directions and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate or incomplete. We encourage you to always put safety first, follow applicable traffic regulations, do not change settings on your device while in motion or in unsafe areas and always be vigilant and take stock of your surroundings when exercising.
You expressly agree that your athletic activities, which may generate the User-Generated Content you post or seek to post on or via the Services (e.g., running, walking, cycling, hiking) and certain Third-Party Activities carry certain inherent and significant risks of property damage, bodily injury, or death and that you voluntarily assume all known and unknown risks associated with these activities, even if caused in whole or part by the action, inaction, or negligence of 38Plank or by the action, inaction, or negligence of others.
Except as otherwise set out in these Terms, and to the maximum extent permitted by applicable law, we are not responsible or liable, either directly or indirectly, for any injuries or damages that are sustained from your physical activities or your use of, or inability to use, any Services or features of the Services, including any Content or activities that you access or learn about through our Services (e.g., a Third-Party Activity such as a yoga class), even if caused in whole or part by the action, inaction or negligence of 38Plank or by the action, inaction or negligence of others. To the maximum extent permitted by applicable law, you also expressly agree that we do not assume responsibility for any Third-Party Activity or any other race, contest, class, athletic activity or event that utilizes or is promoted by or accessed via the Services.
(b) Not Medical Advice
We aim to provide useful general information for our community, not professional medical advice. The Services are not medical devices, and the data provided by them is not intended to be utilized for medical purposes and is not intended to diagnose, treat, cure or prevent any disease, ailment or injury. To the maximum extent permitted by applicable law, you expressly agree that we are not providing medical advice via the Services. All Content provided through the Services, whether provided by us or by other athletes or third parties (even if they are claiming to be a doctor!) is not intended to be and should not be used in place of (a) the advice of your physician or other professionals, (b) a visit, call or consultation with your physician or other medical professionals, or (c) information contained on or in any product packaging or label. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Services. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. If you have an emergency, call your physician or your local emergency services immediately.
Your use of the Services does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between 38Plank and you.
11. Modifications to the Terms and Product-Specific Terms
As 38Plank grows and improves, we might have to make changes to these Terms or include additional terms that are specific to certain products.
(a) Updates to these Terms
38Plank reserves the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing advance notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on the home page of the 38Plank websites or in our applications). Modifications will not apply retroactively unless required by law.
We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your use of the Services following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.
(b) Product-Specific Terms
We may also require you to agree to additional terms, rules, policies, guidelines, or other conditions (collectively, “Product-Specific Terms”) that are specific to certain Services (for example, the Commercial Tools). In such cases, you may be required to expressly consent to Product-Specific Terms. For instance, you might need to check a box or click on a button marked “I agree.” If any of the Product-Specific Terms are different than the Terms, the Product-Specific Terms will supplement, amend, or supersede the Terms, but only with respect to the subject matter of the Product-Specific Terms.
12. No Warranties
EXCEPT WHERE PROHIBITED BY LAW, 38PLANK EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS BASIS. Without limiting the foregoing, you understand that, to the maximum extent permitted by applicable law, we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or any Content. To the maximum extent permitted by applicable law, we do not warrant that (i) the Services will meet your requirements, (ii) the operation of the Services will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. Any oral or written advice provided by our agents or us does not and will not create any warranty. To the maximum extent permitted by applicable law, we also make no representations or warranties of any kind with respect to Content; User-Generated Content, in particular, is provided by and is solely the responsibility of the athletes providing that Content. No advice or information, whether oral or written, obtained from other athletes or through the Services, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
13. Limitation of Liability
We are building the best Services we can for you but we can't promise they will be perfect. We're not liable for various things that could go wrong as a result of your use of the Services.
To the maximum extent permitted by applicable law, under no circumstances (including, without limitation, negligence) shall 38Plank, its subsidiaries, partners or any wireless carriers be liable to you or any third party for (a) any indirect, incidental, special, reliance, exemplary, punitive, or consequential damages of any kind whatsoever; (b) loss of profits, revenue, data, use, goodwill, or other intangible losses; (c) damages relating to your access to, use of, or inability to access or use the Services; (d) damages relating to any conduct or content of any third party or athlete using the Services, including without limitation, defamatory, offensive or illegal conduct or content; and/or (e) damages in any manner relating to any Third-Party Content, Third-party Products or Third-Party Activities accessed via the Services. To the maximum extent permitted by applicable law, this limitation applies to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not 38Plank has been informed of the possibility of such damage, and further where a remedy set forth herein is found to have failed its essential purpose. To the maximum extent permitted by applicable law, the total liability of 38Plank, for any claim under these Terms, including for any implied warranties, is limited to the greater of one thousand dollars (us $1,000.00) or the amount you paid us to use the applicable Service(s) in the past twelve months.
In particular, to the extent permitted by applicable law, we are not liable for any claims arising out of (a) your use of the Services (including but not limited to your participation in any activities promoted by or accessed via the Services), (b) the use, disclosure, display, or maintenance of an athlete’s Personal Data and/or Location Data, (c) any other interactions with us or any other athletes using the Services, even if we have been advised of the possibility of such damages, or (d) other Content, information, services or goods received through or advertised on the Services or received through any links provided with the Services.
To the extent permitted by applicable law, you acknowledge and agree that we offer the Services and set the Services’ prices in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by 38Plank’s own fraud, recklessness, gross negligence or willful misconduct.
If we are sued because of your access or use of the Services, you have to pay our costs.
If you are a resident of the United States or any country other than France or Germany: To the maximum extent permitted by applicable law, you agree to indemnify and hold 38Plank, its subsidiaries, suppliers and other partners harmless from any claim or demand, including reasonable accounting and attorneys’ fees, made by any third party due to or arising out of (a) the User-Generated Content you access or share through the Services; (b) your use of the Services, (c) your athletic activities in connection with the Services (including, but not limited to, athletic activities in connection with any contests, races, group activities, Third-Party Activities or other events that we may sponsor, organize, participate in, or where the Services are employed), (d) your connection to the Services, (e) your violation of these Terms, (f) your use or misuse of any athlete’s Personal Data and Location Data, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another athlete in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
If you are a resident of France or Germany: Notwithstanding the previous paragraph, you agree to indemnify and hold 38Plank, its subsidiaries, suppliers and other partners harmless from any claim or demand as result of your negligent or intentional behavior, including reasonable accounting and attorneys’ fees, made by any third party due to or arising out of (a) the User-Generated Content you access through the Services; (b) your violation of these Terms, (c) your use or misuse of any athlete’s Personal Data and Location Data, (d) any violation of the rights of any other person or entity by you, or (e) your employment of the Services to meet another athlete in person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by 38Plank’s own fraud, recklessness, gross negligence or willful misconduct.
15. Governing Law
If you are a resident of the United States or any non-European Union country: These Terms shall be governed by and construed in accordance with the laws of the State of Maryland and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
If you are a resident of the European Union: These Terms shall be governed by and construed in accordance with Dutch law, without regard to its conflict of law principles.
16. Disputes and Arbitration, Jurisdiction and Venue
If we have a problem, let’s practice good sportsmanship and resolve the dispute through arbitration.
To the maximum extent permitted by applicable law, you and 38Plank agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Services under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Any arbitration between you and us, to the extent necessary, will be conducted in San Francisco, CA and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.
The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:
the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
You are giving up your right to have a trial by jury;
You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in San Francisco, CA and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or 38Plank from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or 38Plank from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of 38Plank’s intellectual property rights.
In the event of any litigation or arbitration arising from or related to these Terms, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
If you are a resident of the European Union: Notwithstanding anything in these Terms to the contrary, if there is a dispute that you and 38Plank cannot resolve, you have the right to submit a complaint through http://ec.europa.eu/consumers/odr. Other than as set out in these Terms, we do not participate in any ADR scheme.
In addition, nothing in these Terms limits your rights to bring an action against 38Plank in the local courts of your place of domicile. All disputes arising under the Terms between you and 38Plank will be subject to the non-exclusive jurisdiction of the courts located in your place of domicile, or the courts located in the Netherlands, and you and we hereby submit to the personal jurisdiction and venue of these courts.
If you are a resident of Finland: Notwithstanding anything in these Terms to the contrary, if there is a dispute that you and 38Plank cannot resolve, you have the right to submit a complaint to the local Consumer Disputes Board (www.kuluttajariita.fi) or other corresponding body.
If you are a resident of Denmark: Notwithstanding anything in these Terms to the contrary, if there is a dispute that you and 38Plank cannot resolve, you have the right to submit a complaint to the Danish Competition and Consumer Authority (Konkurrence- og Forbrugerstyrelsen, Center for Klageløsning, Carl Jacobsens Vej 35, 2500 Valby, mail: email@example.com).
17. International Terms
If you are not a United States resident and you are accessing our Services from outside the United States, you agree to transfer certain information outside your home country to us, and that you will follow all the laws that apply to you.
We provide our Services for a global community of athletes. Our servers and operations are, however, located primarily in the United States, and our policies and procedures are based primarily on United States law. Because of this, the following provisions apply specifically to athletes located outside of the United States: (i) you consent to the transfer, storage, and processing of your information, including but not limited to User-Generated Content and any Personal Data, to and in the United States and/or other countries; (ii) if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department’s list of “Specially Designated Nationals,” you are not authorized to access or make use of the Services; and (iii) you agree to comply with all local laws, rules, and regulations including, without limitation, all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject 38Plank or its affiliates to any registration requirement within such jurisdiction or country.
If you are a resident of the European Union, Hong Kong, Russia, New Zealand or South Korea: Notwithstanding anything in these Terms to the contrary, please note that certain jurisdictions may not allow the waiver or limitation of certain warranties, liabilities or damages under mandatory law, so some of the exclusions and limitations in these Terms may not apply to you. Nothing in these Terms limits or excludes our responsibility for (1) fraudulent representations made by us, (2) death or personal injury caused by our negligence or willful misconduct, or (3) non-execution of any material contractual obligation.
If you are a resident of New Zealand: Notwithstanding anything in these Terms to the contrary, nothing in these Terms limits or excludes our liability or your rights if you are a consumer for the purposes of the Consumer Guarantees Act 1993, or the Fair Trading Act 1986.
If you are a resident of Germany, France, Austria or Finland:Notwithstanding anything in these Terms to the contrary, the qualifier “to the maximum extent permitted by law” and other qualifiers of similar effect shall be deemed to be deleted from the Terms everywhere it appears and shall have no force and effect.
Even if you stop using the Services, certain Terms listed here will still apply.
If our relationship or these Terms terminate, it will not limit any of our other rights or remedies, and any provision of these Terms that must survive in order to give proper effect to the intent and purpose of these Terms will survive termination, including without limitation Sections 3 (Ownership and Use of Content), Section 10 (Physical Activities), 12 (No Warranties), 13 (Limitations of Liability) and 14 (Indemnification).
These miscellaneous provisions are part of just about every online terms agreement. Basically, they ensure that this agreement between us is enforceable.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms or your use of the Services. The Terms and any Product-Specific Terms constitute the entire agreement between you and us with respect to your use of the Services.
Our failure to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not assign, delegate, or otherwise transfer your account or your obligations under these Terms without our prior written consent. We have the right, in our sole discretion, to transfer or assign all or any part of our rights under these Terms and will have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.
Our notice to you via email, regular mail, or notices or links displayed in connection with the Services constitutes acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed.
20. Contact Us
If you have any feedback, questions or comments about the Services, please contact our Support Team by email and include the subject as “Attn: Legal – Terms and Conditions of Use”. Please be sure to include in any email your full name, email address, postal address, and any message.
Welcome to the 38Plank Family!
Posted: 0, 2016
Please be aware that 38Plank, and all associated Services and systems, including registration, is housed on servers in the United States. If you are located outside of the United States, please be aware that information we collect (including cookies) will be processed and stored in the United States, a jurisdiction in which the data protection and privacy laws may not offer the same level of protection as those in the country where you reside or are a citizen. By using our Services and providing information to us, you consent to the transfer to and processing of the information in the United States.
Who We Are
We are 38Plank Inc. We provide internet and mobile application based services including the apps linked to below:
Information We Collect
38Plank collects information to operate our business and provide you with innovative fitness and wellness solutions. We collect both Personal Data and Other Information in support of these efforts.
"Personal Data" is information that can be used, directly or indirectly, alone or together with other information, to identify you as an individual Athlete. This may include your precise Location Data and your Performance Data.
"Other Information" is information that is anonymous, aggregate, de-identified, or otherwise does not reveal your identity. Some examples include age, gender, browser and operating system, time spent using our Services, and webpages visited. We collect and use this information to understand how you and our community as a whole use our Services and constantly tune, enhance, innovate and build products and services to reflect the needs of Athletes. When you are using a mobile device, we also collect and use your Apple Identifier for Advertising (IDFA) and Google Advertising ID (AAID) to recognize your device and support advertising activities on our Services. These number values are not permanently tied to your device and, depending on your operating system, you can reset it through your device settings.
Generally, we do not consider Other Information to be Personal Data. Regardless, if we link together Other Information in a way that renders it individually identifiable, we will treat the combined information as Personal Data.
We collect Personal Data in the following ways:
When you register with us, we collect registration and demographic details (.e.g., name, username and password, email address, date of birth, and location). When you set up a 38Plank account, we will collect your name, username and password, email address, date of birth, and location (e.g., country). We may also collect your postal code, contact number and information about your mobile device (e.g., name of your wireless carrier and device identifier). In addition, we may collect certain demographic information at registration to tailor our Services to your needs, such as age, gender, fitness and physical characteristics, and sport preferences.
When you use or interact with our Services, we collect Personal Data such as Performance Data and Location Data. Performance Data: We collect your Performance Data to help you track your fitness, nutrition, activity levels, sleep, goals and progress, to provide you with feedback (such as training and product recommendations) and to help us run our business.
We collect Performance Data in several ways:
when you input the data manually into the Services,
when you employ features in the Services that are designed to capture the data \
when you leverage technologies that integrate/connect with our Services, and when we calculate additional information from Performance Data you have previously provided (such as when we analyze performance over time).
Here are some examples of Performance Data we collect:
Information about your physical traits, such as height, weight, body measurements and age;
Details about your athletic or recreational activities, such as type of activity, exercise frequency, and performance goals;
Data about athletic performance, such as time spent doing an activity, speed, distance, cadence, hydration, and heart rate;
Location Data: We may collect precise location data as part of the functionality of our Services. We collect Location Data through the Services so we can offer you certain location-based services, provide advertisements that are relevant to your geographic location, and conduct analytics to improve the Services.
We collect Location Data in several ways:
from your wireless carrier,
directly from the device on which you use our Services.
The way in which we collect Location Data is different depending on whether you are accessing the Services through a website or a mobile application. The collection of your Location Data may occur even when our Services are not actively open and running. To learn more about how to control geolocation collection within the Services, please visit here.
If you are accessing the Services through our mobile application, the way we collect Location Data will differ depending on your mobile device’s operating system. In all events, we do not collect Location Data, unless you have “allowed” its collection. If you decline to allow Location Data collection in the app, we will not collect your Location Data unless you manually enter it in.
Other Information: We may collect Other Information about your use of our Services. This includes, for example, your device type, carrier provider, browser type, operating system, internet domain and host name, date and time of access as well as referring and onward URL, as well as transactional data about the activities you undertake and how you interact with the Services, such as what data is displayed, clicked on or shared, the click stream patterns, and the length of time spent on each site or page; and searches you may conduct on the Services.
Note on Connected Devices and Products: When using a wearable or connected device or product, we may collect certain information about the device or product such as serial number, Bluetooth address, UPC, or other device- or purchase-related information.
When we provide you access to third-party products and services. When we provide you access to third-party products and services. If you are accessing third-party products and services that we have made available to you via the Services, we may collect your name, email address, city, fitness preferences, payment information, and more, in connection with your registration for and access to those products and services. For example, we may allow you to register and pay for third-party products and services through the Services. We will only collect and share Personal Data with third parties with your permission.
When we supplement your information, we collect additional Personal Data about you. If you have registered or created an account with us, we may obtain demographic information about you from reputable third-party sources to help us improve our communication with you, give us better consumer insight into your needs and improve our business. We may combine your Personal Data, Performance Data and/or the Location Data with information we obtain from our Services, other users, or third parties to enhance your experience and improve the overall quality of our Services, such as providing you with a single point of sign on for our Services and/or building an account dashboard letting you understand how to access and control all the 38Plank Services you use from a single page. For example, we may obtain updated email address information from email-change-of-address vendors or purchase third-party marketing data and address information and add it to our database to better direct our advertising and provide pertinent offers we think you are more likely to be interested in.
When you engage with our online communities or with advertising on the Services, we may collect Personal Data about those interactions. We may collect your Personal Data when you engage with our online communities. This includes when you click on advertisements, interact with our social media pages, submit content, leave reviews, or otherwise enter information into comment fields, blogs, message boards, events and other community forums sponsored by or affiliated with 38Plank. These forums are public, so please exercise care in deciding what information and content you wish to disclose. We have the right, but not the obligation, to monitor any activity and remove content within the comment fields, message boards, events and other community forums on the Services (e.g., in order to protect other Athletes). Please review our "Community Guidelines" (found in our Terms of Service) for more information regarding appropriate use of our online communities.
How We Use Personal Data
38Plank uses the data we collect to operate our business, advertise and provide our products and Services, improve existing products and services, develop new products and services, and to improve and personalize your experiences interacting with us. We also use your Personal Data to communicate with you and to deliver advertising that may be more relevant to you.
We use the information we collect to:
Operate our business and provide our Services to Athletes, individuals and communities. We use the data we collect to provide the Services that we offer. This includes operating, maintaining, and providing you with all of the content and features of the Services. For example, tracking your fitness and nutrition goals, display of your live location and movement to the extent you allow that, and processing your payment for purchases. We also use the data that we collect for our internal business operations. For example, we use data to better understand our business, analyze our operations, improve the Services, and to develop new products and Services to support your fitness, wellness, and nutritional goals. We may also use the data to track, for example, the total number of visitors to or users of the Services, the number of visitors to each page of the Services, and the domain names of our visitors’ Internet service providers to analyze our business operations and performance.
Personalize experiences on our Services, better understand our Athletes and gain consumer insights. We use the Personal Data we collect to personalize your experience with our Services. This allows us to present products and information tailored to you, your interests and location, and to provide you with specialized route and event content based on your location. In addition, with your consent, your Performance Data may be leveraged to provide you with product and service recommendations. Our use of Personal Data will also allow you to participate in social sharing on our Services, connect and communicate with other users of our Services, and to create and manage your account. We also use Personal Data to better understand our Athletes and the people who use our Services. This helps us to innovate, plan and design new products, services, features and functionality that our Athletes need and want.
Provide you with access to third-party products and services. We use the data we collect to provide third parties with the information necessary to enable those third parties’ fulfillment of the products or services that an Athlete has requested. We also use the data to better understand Athlete preferences and to enhance our Services. In addition, we may use the data within our Services to assist Athletes in meeting their wellness and fitness goals.
Support research and academic research. We and our business partners may use the Personal Data and Other Information we collect to conduct commercial or academic research on demographics, interests, and consumer preferences to gain insights about our Athletes, the products and services Athletes use and also to develop innovative products and services for our Athletes. This analysis may be leveraged and shared outside of 38Plank. This research may be compiled and analyzed by 38Plank, one of our business partners or a third-party on an aggregate or de-identified basis in a way that does not identify you personally.
Address security issues and to resolve disputes. We use the data we collect, including Personal Data in some cases, to protect the security of our Services, employees and users, to detect and prevent fraud, to resolve disputes and to enforce our agreements and contractual commitments.
Administer Promotions. We use the Personal Data we collect during contests, challenges, sweepstakes and promotions to administer the Promotion, verify identity and age, and to communicate with you about the challenge or about other offers. We also collect and use survey information to improve your customer experience and to improve our business, products, and services. With some challenges, promotions and surveys, we may ask questions so we can conduct market research. Sometimes we will ask questions that we know our business partners are interested to learn. Other times, we will ask questions on behalf of our business partners. In these cases, we may share your responses with these business partners for their own market research and communication purposes. For example, we may ask whether you prefer coffee or tea in the morning, and share your response with our coffee company partner. To opt-out of this kind of collection and sharing, you can decline to answer these kinds of questions or decline to participate in the challenge or survey altogether.
How We Disclose Personal Data
To Enable the Use of Our Services. Personal Data that is collected through the Services may be used or disclosed to third parties in order to enable us to provide Services. In addition, with your knowledge and consent, our Services may gather and transfer information from other applications, functions and tools within your mobile device.
In Community Forums. Any information you post or disclose in our community forums (for example, Facebook, WeChat, YouTube, Twitter, or other sponsored pages on the Blog) is public. We cannot control the use of information disclosed in community forums, such as bulletin boards, blogs, chat rooms, and networking functions of mobile applications. Exercise caution when disclosing information in these public areas, and be careful what Personal Data you disclose and how you disclose it. Content posted in our community forums, including advice and opinions, represents the views of the individuals who post that Content and such individuals bear sole and exclusive responsibility for the posting of that content. 38Plank does not necessarily endorse, support, verify, or agree with any content posted in our Community Forums. Please see our Community Guidelines for more information.
As We Grow and Change – Corporate Transactions and Reorganizations. If we should ever merge with another company, or if 38Plank should decide to buy, sell, or reorganize some part or all of its business, we may disclose or transfer, to the extent permitted by law and in compliance with any applicable requirements to notify you, your Personal Data to prospective or actual purchasers or successor entities in connection with one of these transactions or reorganizations.
As Required by Law and Special Circumstances. We may be required, subject to applicable law, to disclose your Personal Data if: (i) it is reasonably necessary to comply with legal process (such as a court order, subpoena, search warrant, etc.) or other legal requirements of any governmental authority, (ii) such a disclosure would potentially mitigate our liability in an actual or potential lawsuit, (iii) it is necessary to protect our legal rights or property, or (iv) it is necessary to protect the legal rights or property or physical security of others, or for the prevention or detection of crime and such disclosure is lawful.
38Plank is committed to protecting the security of your Personal Data. We use technical and organizational measures designed to protect your information against unauthorized access, theft, and loss. We also recommend that you take additional measures to protect yourself and your information, such as installing anti-virus software, closing browsers after use, keeping confidential your log-in credentials and passwords, and making sure that you regularly update software and apps you have downloaded to ensure you have enabled the latest security features on your devices.
38Plank will retain your Personal Data for as long as you maintain an Account or as needed to provide you the Services. We will also retain and use your Personal Data as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
How We Use Data Collection Tools and Online Advertising
Types of Cookies We Use. We use several different types of cookies:
Strictly necessary cookies: these are cookies that are required for the operation of our websites. Without them, for example, you would not be able to register or log in for any Services that we may offer.
Analytical/performance cookies: these cookies allow us to recognize and count the number of visitors and to see how visitors move around our websites. These helps us to improve the way our websites work, for example, by ensuring that users are finding what they are looking for easily and do not encounter technical errors.
Functionality cookies: these are used to recognize you when you return to our websites. Usage of cookies of this character enables us to personalize our content for you and remember your preferences.
Targeting cookies: these cookies record your visit to our websites, the pages you have visited and the links you have followed. Usage of cookies of this character helps us and our Ad Partners to deliver ads or messages that are relevant to you and your interests. We may also share this information with third parties for this purpose. For example, these cookies allow us to identify and send you messages about items you have left in your cart and make other purchasing recommendations.
Interaction cookies: because we are interested in your opinion about our brand and items, we use interaction cookies. These cookies allow us to communicate. For example, these cookies allow you to “like” us or recommend us on social media. These social media interaction cookies may collect information about your visit even though you do not interact with them.
How We Use Web Beacons. Some of our websites and Services such as e-mail updates may contain electronic images called “web beacons” (sometimes known as one pixel GIFs, clear GIFs or pixel tags). Web beacons allow us to count visitors who have viewed content on websites or pages. In promotional e-mail messages and newsletters, web beacons allow us to count how many subscribers have read them. They also allow us to develop statistical information about the activities and features that most interest our Athletes in order to provide more personalized content. We do not use web beacons to access your Personal Data without your consent.
How We Engage in Online Advertising We display ads on websites and mobile applications that we own and operate. When you visit one of our websites or view ads that we or our Ad Partners serve elsewhere on the web, you may see different kinds of ads, such as text next to search results or video on web pages. Sometimes, these ads are based on the content of the pages on which they appear. Other times, they are generated when our Ad Partners match the ad to your interests, as inferred from your online activities. This is known as interest-based advertising. The goal is to show you ads that will most interest you.
To meet this goal, we and some of Ad Partners use technologies like cookies and web beacons to collect information about your interaction with our Services and other third-party websites ("Online Data"). Typically, Online Data is aggregated with other data to create segments – groups of users and certain general interest categories that our advertising partners have inferred based on a variety of factors (for example, “sports fan”). Online Data can include information about:
web pages, apps, products and services you view and links you click on when using our websites and services as well as third-party websites;
our e-mails that you view and links you click on within that e-mail;
whether you view or click on ads that are shown to you;
demographic or interest data, including general geographic location;
offline purchase data that may be combined with Online Data to create a better profile regarding your interests or purchasing preferences; and
search terms you enter when using certain search services.
We and our Ad Partners use this Online Data to serve ads online that interest the audiences with whom we interact – including you.
In addition, our Ad Partners use this Online Data for a variety of other purposes, including (a) in conjunction with advertising that appears on our website or other websites, (b) to report website traffic, statistics, advertisement data and other interaction with ads and the websites on which they are served, and (c) to measure the effectiveness of web-based and e-mail ads
Opt-out of cookies and interest-based ads. As a user of our Services, you have a number of ways you may communicate your privacy preferences to us.
a. Setting your browser to reject cookies If you don’t want cookies, you can set your computer to (a) warn you each time a cookie is being sent or (b) turn off all cookies (except Flash cookies) through your browser. You may also visit www.aboutcookies.org. To find out more about how to manage or delete Flash cookies, visit Adobe. Please note that if you do not accept cookies, some features or activities may not be available to you.
b. Opting-out of interest-based advertising We support the Self-Regulatory Principles for Online Behavioral Advertising of the Digital Advertising Alliance in the US, the Canadian Digital Advertising Alliance in Canada, and the European Digital Advertising Alliance in the EU. Ads that we place online using interest-based data are expected to be delivered with the Enhanced Notice required by those principles. If you live in the United States, Canada, or the European Union, you can visit Ad Choices (US), Your Ad Choices (Canada), or Your Online Choices (EU) to find a convenient place to indicate your preferences, including the option to make one “universal” opt-out of interest-based advertising with participating entities for each region. These websites also provide detailed information about interest-based advertising and tips for managing your online privacy. When you opt-out using these methods, a cookie will be placed on your device indicating that you have opted-out of interest-based advertising. If you delete your cookies, you will need to opt-out again. In addition, when you opt-out using these methods, this does not mean that you will no longer receive advertising from us, or when you use the Internet. It just means that the advertising you see displayed on websites will not be customized to your interests.
c. Opting-out of interest-based advertising on your mobile device For most mobile devices, you can control the interest-based ads you see in two different ways: (1) changing the privacy settings of the device itself; and (2) changing the privacy settings of your browser. For example, iOS version 6 and above devices feature Apple’s Advertising Identifier, which allows you to “Limit Ad Tracking” by going to your device’s settings, under “Privacy” and then “Advertising.” You can also modify the settings of your browser, such as Safari, by going to the settings of that browser and under “Privacy and Security,” select “Do Not Track.” Additionally, you can click on the AdChoices link to opt-out. In addition, please note that if you use ad blocking software on your device, this may interfere with certain features and cause a disruption of service.
Set your communication preferences. We respect your communication preferences and have created several ways for you to control how 38Plank communicates with you:
Email Communication: You may stop receiving promotional email messages from us by following the unsubscribe instructions provided in any such message you receive. Please note that if you unsubscribe from “all emails” this means “all promotional emails” and you still will receive email communications from us that are not promotional in nature.
Postal Mail: You may stop receiving promotional postal mail from us by following the opt-out instructions that may be included within those communications.
Mobile Messages: You may stop receiving promotional messages on your mobile device by following the opt-out instructions that are included in any such message you receive.
Push Notifications: With your permission, 38Plank may use push notifications to let you know about new messages or events even when you are not actively using a Service. You can manage the type of push notifications you receive from 38Plank by modifying the settings of your 38Plank applications and websites.
You may also contact us through our Support Team to indicate or update your communication preferences.
Manage your geolocation services. Most mobile devices provide users with the ability to disable location services. Disabling location services will not allow us to collect your Location Data (by virtue of the location of your mobile device) when you use our Services and may impact the operation of a Service. Most likely, these controls are located in the device’s settings menu. If you have questions about how to disable your device’s location services, we recommend you contact your mobile service carrier or your device manufacturer.
We do not knowingly collect Personal Data from children under 13. If you become aware that a child has provided us with Personal Data without parental consent, please contact us through our Support Team. If we become aware that a child under 13 has provided us with Personal Data without parental consent, we will take steps to remove the information and terminate the child's account.
Residents of Australia. 38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in Australia, you may request access to or correction of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our Support Team. If you have any complaints regarding how we handle your Personal Data, please contact our Support Team UA responds to complaints as soon as practicable, and in any event, within the time limits prescribed by law.
Residents of China. You may choose not to provide 38Plank with your Personal Data. However, if you choose not to provide your Personal Data, you may not be able to enjoy the full range of Services.
Residents of the European Economic Area
a. If you elect not to provide personal data You may choose not to provide 38Plank with your Personal Data. However, if you choose not to provide your Personal Data, you may not be able to enjoy the full range of Services.
b. How to make access requests. 38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in the European Economic Area, you may request access to, and modification, opposition and deletion of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our Support Team. Subject to applicable law, we will respond to reasonable requests as soon as practicable, and in any event, within the time limits prescribed by law.
Residents of Hong Kong
38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in Hong Kong, you may request access to or correction of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our <> or at the address listed below. We may charge for this service and will respond to reasonable requests as soon as practicable, and in any event, within the time limits prescribed by law.
a. Your consent for use or sharing of personal data for marketing purposes You may choose not to provide 38Plank with your Personal Data. However, if you choose not to provide your Personal Data, you may not be able to enjoy the full range of Services. You may provide your consent through the methods described in the next section.
b. How to indicate your consent and opt-out You may indicate your consent in a number of ways, including: (i) ticking a box to indicate your consent when providing us with your Personal Data through our Services or a form (including enrolling in Promotions); or ticking a box to indicate your consent when registering with us or creating an account with us. You may opt-out from receiving marketing communications at any time, free of charge.
Residents of Mexico
By using the services you consent to the collection, use and transfer of your Personal Data (including sensitive personal data pursuant to Mexican law) for processing in the United States as described in this policy. a. Access requests 38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in Mexico, you may request access to, modification, cancellation or opposition of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our Support Team. We will respond to reasonable requests as soon as practicable, and in any event, within the time limits prescribed by law.
Residents of New Zealand
38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in New Zealand, you may request access to or correction of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our Support Team or at the address listed below. We may charge for this service and will respond to reasonable requests as soon as practicable, and in any event, within the time limits prescribed by law.
Residents of South Korea
a. Access requests 38Plank takes steps to keep your Personal Data accurate and up to date. If you reside in South Korea, you may request access to, and modification, opposition and deletion of the Personal Data that we have collected about you. To access your Personal Data, please contact us through our Support Team. We will respond to reasonable requests as soon as practicable, and in any event, within the time limits prescribed by law.
b. Data retention and destruction Under applicable Korean law, your Personal Data must be retained for the following periods:
Communications confirmation data
Reason of retention: Communications Privacy Protection Act
Retention period: three months
C. Method and procedure for the destruction of personal data. 38Plank retains your Personal Data (i) for as long as you maintain an Account or as needed to provide you the Services and/or (ii) as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. Personal Data is destroyed when it is no longer necessary for these purposes. The specific destruction process and method are as follows: (i) Personal Data printed on the paper is shredded, burned, pulped, pulverized, or incinerated; and (ii) Personal Data stored in electronic form is deleted using technology designed to prevent the recovery of the Personal Data.
Residents of the United Arab Emirates
If you reside in the United Arab Emirates, your use of the Services signifies your consent to the following:
• You affirmatively waive your material privacy rights under applicable laws;
• 38Plank may disclose any information you provide us, including information you may consider private; and
Residents of California, United States: your California privacy rights
California Civil Code Section 1798.83 permits California residents to request and obtain from us a list of what Personal Data (if any) we disclosed to third parties for that third-party’s direct marketing purposes in the preceding calendar year and the names and addresses of those third parties. Requests may be made only once a year and are free of charge. Under Section 1798.83, we currently do not share any Personal Data with third parties for their direct marketing purposes. If we do decide to share your Personal Data with third parties for their marketing purposes, you may opt-out of this disclosure at any time by submitting a request to our Support Team.
It is important to note that this opt-out does not prohibit disclosures made for non-marketing purposes or for purposes of assisting us with our own marketing. Additionally, if you are a registered user under the age of 18 and a resident of California, you may request removal of content you have posted to the Services. Requests can be made to our Support Team. Please note that making such requests does not ensure complete or comprehensive removal of the content. For example, we may retain the information for our own internal records, and it is also possible that a third-party we do not own or control may copy the posting and repost it elsewhere.
Third Parties We Don’t Own or Control
How to Contact Us
If you have any questions, comments, or concerns about how we handle your Personal Data, then you may contact us through our Support Team.