End User License Agreement (EULA)
Last Updated: September 19, 2017
Please note these terms include a waiver of jury trials, a class-action waiver, and require binding arbitration on an individual basis to resolve disputes.
You must be 13 years of age or older to use the Motiv Service. You may only connect to the App using an authorized Device that is manufactured, distributed, or sold by or on behalf of Motiv (an “Authorized Device”) and you may not use the Motiv Service with any software of application other than the App and the Sites in the form provided by Motiv.Motiv.
Medical Warnings and Disclaimer
Use of the Motiv Service is at your own risk. The Motiv Service is intended for recreational use only and is not intended to diagnose, treat, prevent, or cure any disease. You should always consult with your physician or other qualified healthcare provider before engaging in a new exercise program or training regimen, significantly changing your diet, or engaging in strenuous or increased physical activity. If you have any specific questions about your use of the Motiv Service or your health and fitness, you should consult your doctor or other healthcare provider. If you experience a medical emergency or medical symptoms, stop using the Motiv Service and consult with a medical professional. We are not responsible for any health problems that may result from your use of the Motiv Service or injuries due to the physical nature of wearing a device during any activity. We are not responsible for training programs, consultations, recommendations, advice, tips, content, products, services, or events you learn about through the Motiv Service.
Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.
Copyright and Limited License.
(a) The Motiv Service and all content and other materials contained in the Motiv Service, including, without limitation, the Motiv logo, user interface, and all text, designs, photos, graphics, videos, articles, tips, comments, information, data, software, sound files, and the selection and arrangement thereof (the “Motiv Content”) are the proprietary property of Motiv and its licensors and users and are protected by patent, copyright and other intellectual property laws and treaties. You agree not to use the Motiv Service except in its intended manner in accordance with these Terms. The App and the Motiv Content are licensed and and not sold to you.
(b) Subject to the terms, conditions and limitations set forth in these Terms, Motiv grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to install and use the App on any mobile device that you own or control and to access and use the Motiv Service, solely for your personal, noncommercial use and enjoyment. We reserve the right to terminate this license at any time in our sole discretion.
You agree not to do, or authorize or permit others to do, any of the following: (i) rent, lease, lend, sell, redistribute or sublicense the App or the Sites or make any commercial use thereof or of the Motiv Service; (ii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or tamper with any portion of the App, the Sites or other aspects of the Motiv Service (except to the extent any such restrictions are prohibited by applicable law); (iii) modify, alter or create any derivative works of the App or the Sites; (iv) modify or attempt to modify the Device or circumvent any technological measure implemented by Motiv or third parties to protect the Motiv Service or any users; (v) access the Motiv Service or any Motiv Content through the use of any mechanism other than through the use of an Authorized Device and the App in the form provided by Motiv; (vi) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the App or the Sites; (v) use any data mining, robots or similar data gathering or extraction methods; or (vi) use the Motiv Service other than for their intended purpose or in a manner that interferes with the use of the Motiv Service by other users.
Third Party Sites and Services
The Motiv Service contains links to third party content, data, information, events, applications or materials, including tips, factoids, recommendations, advice,and articles that may be accessed through the Motiv Service (collectively the “Third Party Materials”) and may also link to third party web sites, applications, service providers, or other third party products and services (“Third Party Services”). Motiv does not endorse and makes no representations or warranties of any kind regarding any Third Party Materials or Third Party Services. If you access or use any third party web site, you should be aware that Motiv’s terms and policies no longer govern.
Content You Share
You may submit tips, factoids, articles, advice, photos, videos, exercise regimens, comments, and other content or materials (the “User Content”) for publication and use in connection with the Motiv Service. You are solely responsible, and assume all liability for User Content that you post or transmit using the Motiv Service, or that are posted or transmitted using your account, as well as for your conduct and the conduct of anyone using your account. You agree that Motiv is not in any way responsible for any User Content, or for any loss or damage thereto, or for the conduct or content of other users that you may encounter as a result of using the Motiv Service.
You agree that the User Content you post or transmit using the Motiv Service will not (a) infringe, misappropriate, or violate the rights of any third party (including copyrights, trademarks, trade secrets, moral rights and rights of privacy or publicity), (b) violate any applicable law, rule or regulation, (c) be unlawful, defamatory, obscene, pornographic, indecent, lewd, suggestive, profane, offensive, inappropriate, harassing, threatening, violent, harmful, abusive, inflammatory, hateful, discriminatory, false, misleading, deceptive, or fraudulent; (d) encourage or promote any illegal, harmful, or unsafe conduct, activity or substances; (e) advertise or promote any product or service or otherwise be commercial; or (f) contain any viruses, corrupted data or other harmful, disruptive or destructive files.
You further agree that you will not do any of the following in connection with your use of the Motiv Service or its users:
Enforcement of these user content and conduct rules is solely at our discretion, and these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Motiv Service will not contain any content or conduct that is prohibited by such rules. As a provider of interactive services, Motiv is not liable for any statements, representations or User Content provided by its users in connection with the Motiv Service. Although we have no obligation to do so, we reserve the right to remove, screen, or disable access to any User Content at any time and for any reason without notice, and you are solely responsible for creating backup copies of any User Content you transmit through the Motiv Service.
Ownership and Use of User Content
You retain all ownership rights in your User Content. However, by submitting User Content, you hereby grant us an irrevocable, nonexclusive, worldwide, perpetual, royalty-free, sublicensable, and transferable license to publish, reproduce, distribute, transmit, store, adapt, translate, publicly perform, publicly display and otherwise use your User Content in any manner or media in connection with providing the Motiv Service and as otherwise described in these Terms. You understand that any User Content you post to the Motiv Service will be publicly available and you also grant Motiv and its affiliates and sublicensees the right to use the name that you submit in connection with such content. You understand and agree that the use of a user’s name, likeness, voice or identity in connection with any User Content you submit or other features of the Motiv Service does not imply any endorsement of such feature or of the Motiv Service or the Company unless explicitly stated otherwise.
You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content and grant the rights you grant in these Terms; (b) the User Content is accurate and not misleading and discloses any material connections; and (c) your use and posting of the User Content does not violate these Terms; and (d) neither your use and posting of any User Content, nor the use thereof by Motiv or its users in connection with the Motiv Service, will not infringe upon or violate any rights of, or cause injury to, any person or entity.
You agree that any feedback, suggestions, ideas, or other information or materials regarding the App or the Motiv Service that you provide, whether by email or otherwise (“Feedback”), are non-confidential and shall become the sole property of Motiv. We will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledging or compensating you. You waive and assign to us any rights you may have to the Feedback (including any copyrights or moral rights).
When you create an account, you agree to: (a) provide accurate, current and complete information about you as may be prompted when you register (“Registration Data”); (b) maintain the security of your password and identification; and (c) maintain and promptly update the Registration Data to keep it accurate, current and complete. You are responsible for making sure that you keep your password secure and safe, and you accept all responsibility for any activity that occurs through your account, with or without your knowledge. You agree that you will not do anything that might jeopardize the security of your account, including sharing your password with or logging in through unauthorized third-party applications or clients. If you use any such application or client, you acknowledge and agree that we will bear no responsibility for any actions taken by those applications or clients, such as any breach of or unauthorized use of your account information or messages.
Termination or Modification of Motiv Service
Motiv reserves the right to modify, suspend, remove, or discontinue the Motiv Service or to terminate your account or disable or suspend your access to the App or the Sites at any time without notice. In no event will Motiv be liable for the removal of or disabling of access to the App or the Sites.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Motiv has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers. We may also in our sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Motiv Service infringes upon any copyright which you own or control please see please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You may file a notification of such infringement with our Designated Agent as follows:
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MOTIV, the Motiv logos and any other Motiv product or service name or slogan contained in the Motiv Service are trademarks of Motiv, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Motiv or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Motiv” or any other name, trademark or product or service name of Motiv without our prior written permission. In addition, the look and feel of the Motiv Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Motiv and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Motiv Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
Indemnification. You agree to defend, indemnify and hold harmless Motiv, and its employees, contractors, service providers, consultants, directors, agents, successors, and assigns, from and against all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) any User Content or messages you transmit through the Motiv Service; (b) your conduct in connection with the Motiv Service; (c) your violation of these Terms; or (d) your violation of the rights of any third party.
LIMITED DEVICE WARRANTY; DISCLAIMERS Motiv provides a limited one year warranty on Devices purchased directly from Motiv or its authorized dealers, as described on our Warranty page https://mymotiv.com/return-policy (the “Device Warranty”). EXCEPT FOR THE DEVICE WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MOTIV SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EXCEPT FOR THE DEVICE WARRANTY, MOTIV HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE MOTIV SERVICE, EITHER EXPRESS, IMPLIED OR ARISING BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE MOTIV SERVICE IS AT YOUR SOLE RISK.
MOTIV CANNOT AND DOES NOT WARRANT THAT THE MOTIV SERVICE WILL FUNCTION CORRECTLY AND WITHOUT DELAYS OR DISRUPTIONS, WILL AT ALL TIMES BE SECURE, ERROR FREE AND PREVENT UNAUTHORIZED ACCESS, OR THAT ALL DEFECTS IN THE MOTIV SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN STATEMENTS, INFORMATION, GUIDELINES OR ADVICE GIVEN BY MOTIV OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE ANY WARRANTY. YOU UNDERSTAND THAT THE DATA GENERATED THROUGH THE MOTIV SERVICE IS MERELY AN ESTIMATE, AND MOTIV IS NOT RESPONSIBLE FOR, AND MAKES NO WARRANTIES OF ANY KIND REGARDING, THE ACCURACY, QUALITY, RELIABILITY, EFFECTIVENESS, TIMELINES, TRUTHFULNESS, COMPLETENESS OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE MOTIV SERVICE.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MOTIV BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE DEVICE, THE APP, THE SITES OR ANY OTHER ASPECT OF THE MOTIV SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), AND OTHER USER CONTENT, EVEN IF MOTIV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL MOTIV’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE APP, THE SITES OR THE MOTIV SERVICE EXCEED THE GREATER OF TEN DOLLARS OR THE TOTAL AMOUNT, IF ANY, THAT YOU HAVE PAID FOR THE DEVICE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Export Limitations. You may not use or otherwise export or re-export the Device or the App except as authorized by United States law and the laws of the jurisdiction in which the Licensed App was obtained. In particular, but without limitation, neither the Device nor the App may be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Motiv Service, you represent and warrant that you are not located in any such country or on any such list.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH MOTIV, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(a) Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of the Motiv Service or any other product or service provided by Motiv that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms set forth below (the “Arbitration Agreement”), except that neither of us are required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. This Arbitration Agreement applies to you and Motiv, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is ten thousand U.S. dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
(d) Authority of the Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Motiv, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Motiv.
(e) Waiver of Jury Trial. YOU AND MOTIV HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Motiv in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MOTIV WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(f) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision in these Terms, in the event that this subparagraph is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes shall be resolved in a court located in Los Angeles County, California.
(g) Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(h) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(i) Small Claims Court. Notwithstanding the foregoing, either you or Motiv may bring an individual action in small claims court.
(j) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in San Francisco, California, for such purpose.
(k) Survival. This Arbitration Agreement will survive the termination of your relationship with Motiv.
22 Governing Law; Venue. The laws of the State of California, excluding its conflicts of law rules, govern your use of the Motiv Service. Your use of the Motiv Service may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the Motiv Service or this agreement shall be filed only in the state and federal courts located in San Francisco County, California, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Motiv Service.
Notwithstanding anything to the contrary in the terms set forth above, the following additional terms shall apply to any Applications downloaded for use on the iPhone, iPod Touch, or iPad:
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