Terms and Conditions
Tiva, LLC, a Georgia limited liability company (the “Company"), thanks you for your interest in the use of its application and all content, services, resources and products available at or through the application or website (http://www.tivafitness.com) (collectively, the “App” or the “Service”). This Terms of Use (the “Agreement”) outline the terms and conditions (the “Terms”) governing your use of the App. By accessing or using the App, you agree to be bound by these Terms. If you do not agree to these Terms, you must stop using the App immediately.
1. Acceptance of Term.
By using the App, you agree to these Terms and any subsequent updates or modifications. Your continued use of the App after any changes constitutes your acceptance of the revised Terms.
In order to access the App, you must register with the Company for an account and submit your name, email address, preferred password, and other information requested on an account registration page. The Company shall have the right to approve or reject your account in the Company’s sole discretion.
The Company provides you a limited, personal, non-exclusive and non-transferable license to use the App, only as expressly permitted by this Agreement.
2. Eligibility.
You must be at least 18 years old to use the App. By using the App, you affirm that you are at least 18 years old. Any use of the App by individuals under 18 years old is strictly prohibited unless you are at least 13 years old (a “Minor”), and are using the App with the consent of your parent or legal guardian who has agreed to the Terms. If you are a parent or legal guardian agreeing to the Terms for the benefit of a Minor, you are fully responsible for the Minor’s use of the App, including all legal liability he or she may incur. If you are not at least 13 years old, you may not use the App.
3. Transfer and Assignment. You may not assign, transfer, or sublicense any of your rights or obligations under this Agreement. Any attempted assignment, transfer, or sublicense will be null and void. The Company may assign, transfer, or delegate any or all of its rights and obligations under this without prior notice or consent from any user. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
4. Your Account. You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with it. You must not use your account in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others. You must immediately notify the Company of any unauthorized uses of your account or any other breaches of security. The Company will not beliable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
5. Medical Disclaimer. The information and materials posted on, gathered on or accessible through the App are for informational purposes only and are not intended to be a substitute for professional medical advice, diagnosis, or treatment. The Company does not recommend or endorse any specific products, procedure, viewpoints, opinions, or other information that may be mentioned on the application. You should consult your physician or other healthcare practitioner before starting any exercise program. This is particularly true if you or your family have a history of high blood pressure or heart disease, or if you have ever experienced discomfort while exercising. Never disregard professional medical advice or delay in seeking it because of something you have read on the App. The App is not intended to diagnose, treat, cure, or prevent any disease or medical condition. Any information provided by the App should never be construed as personalized medical advice. Reliance on any information provided by the App is solely at your own risk. The heart rate measurements and data provided by the application should always be independently verified and should never be relied upon for any purpose. While the Company strives for accuracy, the Company does not certify as to the accuracy or precision of the heart rate data collected. You are solely responsible for your use of any information provided by the App. This section shall survive any termination of this Agreement.
6. Third-Party Service Provider. THE COMPANY DOES NOT HANDLE PAYMENT FOR ANY SERVICES. For facilitating payments via bank account, credit card, or debit card, the Company employs third-party payment processors such as Stripe, Inc. and its affiliates for payments made through the App, and such as Apple and Google for payments made through the respective App Store (collectively, “Third-Party Service Provider”). The payment processing services are governed by the terms, conditions, privacy policies, and all other relevant agreements (collectively, the “Payment Processor Agreements”) of the Third-Party Service Providers. Agreement with this Agreement also signifies agreement to the applicable Payment Processor Agreement for the user’s chosen payment function, as may be applicable, which may be updated periodically by the respective Third-Party Service Provider. You give the Third-Party Service Provider authorization to store and continue billing your specified payment method past its expiration date to prevent payment interruptions for usage of the App. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and the Company is not responsible if your card issuer declines to authorize payment for any reason. Your card issuer may charge you an online handling fee or processing fee and the Company is not responsible for this. In some jurisdictions, the Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services. For more information, contact the applicable Third-Party Service Provider directly. The Company is not liable or responsible for any payments made through a Third-Party Service Provider.
7. Subscriptions. The App is only available to users via a paid subscription. Specifics of the subscription plan are made available at the point of purchase. Based on the subscription plan you choose, you will be billed in advance in a regular, periodic manner (daily, weekly, monthly, or yearly). Unless you or the Company cancels it, your subscription will automatically renew at the end of every billing cycle under the same conditions. Subscription renewal can be cancelled through your account settings. Refunds will not be issued for fees paid for the current subscription cycle, and you will retain access to subscription-only services till the end of your current cycle. If the subscription was made via an in-app purchase, renewal cancellation can be done through the respective App Store. If you wish to terminate your subscription, you can do so anytime, ensuring it's at least 24 hours before the end of the relevant cycle. The termination will take effect following the completion of the current billing cycle. Upon purchasing a subscription through us, you agree to provide accurate and complete billing information such as full name, address, state, zip code, telephone number, and valid payment method. You agree to promptly update any changes in your account information with us or the Third-Party Service Provider, as applicable. You consent to pay us the amount specified in your chosen payment plan in accordance with the plan's terms and this Agreement. For payment plans involving automatically renewing subscriptions, you grant us (via the Third-Party Service Provider) authorization to bill your payment method in advance on a periodic basis according to your plan's terms until your account is terminated. Any charges incurred must be paid. If you dispute any charges, it must be brought to our attention within thirty (30) days from the charge date. You will be responsible for all taxes associated with the Service, except for taxes on our net income. The Company reserves the right to modify the subscription fees at any time at the Company’s sole discretion. Any changes to the subscription fee will take effect at the end of the current subscription period. The Company will provide reasonable advance notice of any changes in fees to give you an opportunity to end your subscription before the changes take effect. Continued usage of the Services after the fee change signifies your agreement to pay the revised subscription fee. Paid subscription fees are non-refundable unless required by law. Certain refund requests for subscriptions may be considered on a case-by-case basis at the Company’s sole discretion. For in-app purchase subscriptions, the App Store's refund policy applies. Refund requests can be made by directly contacting the App Store. The Company may offer a subscription with a free trial for a limited period at the Company’s sole discretion. You may be asked to enter your billing information to sign up for the free trial. If you provide your billing information, you will not be charged until the free trial period ends. Unless you have cancelled your subscription, you will automatically be charged the applicable subscription fees for the type of subscription you have chosen on the last day of the free trial. The Company reserves the right to modify the terms and conditions of the free trial offer or cancel the free trial offer at any time and without notice. For information about managing in-app purchases using your device, refer to the App Store's own terms and conditions or your device's help settings. In-app purchases cannot be redeemed for cash or transferred. Promotions made available through the Services may be governed by separate rules. If you participate in any promotions, please review the applicable rules as well as the Company’s Privacy Policy. If the rules for a promotion conflict with this Agreement, the promotion rules will apply.
8. Payment for Failed Class. If you fail to successfully complete a Tiva Class, you will be charged the Accountability Cost that you have selected and you shall pay all such fees or charges (“Fees”). The Company reserves the right to charge your payment method for each failed Tiva Class, the Company is authorized to charge your payment method for each such failure. You must provide the company and the Company’s Third-Party Service Provider with accurate and up-to-date payment information, as a condition to using App. Your agreement with your payment provider (e.g., card-issuing bank) (the “Payment Provider”) governs your use of your payment method, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing the Company and the Company’s Third-Party Service Provider with your payment information, you agree that the Company and the Company’s Third-Party Service Provider is authorized to immediately charge for all Fees due and payable to the Company and that no additional notice or consent is required. You shall immediately notify the Company of any change in your payment information to maintain its completeness and accuracy. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to the Company and the Company’s Third-Party Service Provider or the Company’s inability to collect payment from your Payment Provider constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable. The App has a mechanism for you to dispute any Tiva Class marked as a failure or unsuccessfully completed if you believe it should not have been marked as a failure or unsuccessfully completed, and therefore, should not have been charged the Accountability Cost (as described in the App). To dispute a class, go to Settings > Help & Support > Dispute Class. Pick the Tiva Class marked as unsuccessfully completed and follow the prompts. The Company is not obligated, under any circumstances, to refund your Accountability Cost. The Company will review all facts and circumstances available in each situation and make a determination, at the Company’s sole discretion, whether to refund any charge or fee. YOU MUST USE THIS AVENUE OF RECEIVING A REFUND FOR ANY ACCOUNTABILITY COST PRIOR TO ANY OTHER METHOD AVAILABLE TO YOU AS OUTLINED IN THE TERMS.
9. Necessary Equipment and Software. The Company utilizes third-party wearable devices in conjunction with the App. List of current compatible third-party wearable devices (each a “Compatible Device”): 1.Apple Watch©. The App requires you separately purchase and acquire a Compatible Devices. To use the App, you must have a mobile device that is compatible with the App. The App does not warrant that any mobile device is compatible with the App or the third-party wearable devices required to use the App. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service. You agree to release, indemnify, and hold harmless the Company from and against any claims, liabilities, damages, losses, and expenses, including, but not limited to, legal fees and costs arising out of or in any way connected with the use of the Compatible Device, including any inaccuracies or discrepancies in the data collected by such devices. You further understand and accept that the Company is not responsible for the accuracy, reliability, or performance of the Compatible Device, and any reliance on such device is at your own risk. Additionally, you acknowledge that the Company cannot be held liable for any issues related to the functionality, operation, or malfunctioning of the Compatible Device, including but not limited to, hardware defects, software glitches, connectivity issues, or otherwise lack of functioning. The Company is not responsible for any issues whatsoever related to any third party wearable device, but the Company will do its best to problem solve any issues with connectivity or lack of functioning on part of the App. You are responsible to make sure your device is successfully connected prior to each class. The instructions to successfully complete a Tiva Class are outlined within the App; however, the basic instructions require that (1) you successfully connect your heart rate device; (2) you Check In to each Tiva Class; (3) you “Start” each Tiva Class on time; (4) you workout the entire duration of the Tiva Class (determined by the Company’s algorithm); and (5) you Check Out of the Class upon completion. If the Company determines any of following were not followed, the Company will mark the Tiva Class as unsuccessfully completed. The Company does not claim to know with certainty whether or not you worked out and may only infer based on the information provided which is not always accurate due to the nature of transmitting information in this capacity and reliance on third parties.
10. Feedback. You may provide and the Company encourages ongoing feedback directly to us regarding the App. You grant the Company a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the App any suggestion, enhancement request, recommendation, correction or other feedback you provide relating to the operation of the App for use by the Company and users of its offerings.
11. iOS and Android. The following terms apply to a mobile application the Company provides to you that is designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and the Company only, and not with Apple, Inc. (“Apple”).
- Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.
- The Company, and not Apple, is solely responsible for the iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
- You agree that the Company, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the OS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that the Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
- You acknowledge that these Terms are between you and the Company only, and not with Google, Inc. (“Google”).
- Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. The Company, and not Google, is solely responsible for the Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
12. Privacy. Your privacy is important to us. Please review the Company’s Privacy Policy to understand how the Company collects, uses, and discloses your information in connection with the App.
13. Dispute Resolution and Arbitration; Class Action Waiver. PLEASE READ THIS SECTION (THIS “SECTION”) CAREFULLY AS IT AFFECTS YOUR RIGHTS. All Disputes (as defined below) between you and the Company shall be resolved by binding arbitration. Arbitration is a method of dispute resolution where disputes are submitted to a neutral third party, called an arbitrator, instead of going to court. The arbitrator acts like a private judge, hearing evidence and arguments from both sides and making a final and binding decision, known as an arbitration award. In the absence of this Section, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EXCEPT AS OTHERWISE PROVIDED, ENTERING INTO THESE TERMS CONSTITUTES A WAIVER OF YOUR RIGHT TO LITIGATE CLAIMS AND ALL OPPORTUNITY TO BE HEARD BY A JUDGE OR JURY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). For the purpose of this Section, “the Company” specifically includes the Company and all respective members, officers, directors, employees, and agents. The term “Dispute” includes any dispute, disagreement, claim, or controversy between you and the Company regarding, arising out of or relating to any aspect of your relationship with the Company, whether based in contract, statute, regulation, ordinance, tort, including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence, or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). To the extent permitted by law, “Dispute” shall be given the broadest possible meaning, and shall include any claims against other parties relating to services or products provided or billed to you (such as the Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. YOU AND THE COMPANY EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS SECTION. Informal Dispute Resolution For all Disputes, the Company must first be given an opportunity to resolve the Dispute. To notify the Company of your Dispute, you must mail written notification to Tiva, LLC, 600 Sea Island Road, #326, Saint Simons Island, GA 31522, with a copy to support@tivafitness.com. The written notifice must include (1) your name, (2) your address, (3) a valid email address, (4) a written description of your claim, and (5) a description of the specific relief or damages sought. If the Company does not contact you to begin resolution of the Dispute within 60 days from the Company’s receipt of the notification of the Dispute and it is not resolved within 90 days from the Company’s receipt of the notification of the Dispute, you may pursue your Dispute in arbitration (or in a court, only under the circumstances described below). Should the issue be resolved via Informal Dispute Resolution, you shall be prohibited from bringing a subsequent claim or dispute based on the same set of facts or circumstances, through arbitration as outlined in this Agreement, or otherwise. Exclusions from Arbitration/Right to Opt Out If you do not wish to be bound by the arbitration clause, you have the option to opt out by following the procedure outlined below. You must provide written notice to the Company, including your name, address, email used for your account, and a clear statement expressing your desire to opt out of the arbitration clause. YOUR OPT-OUT NOTICE MUST BE RECEIVED BY THE COMPANY WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). If you do not opt out of the arbitration clause (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. Any opt-out notices received after the Opt Out Deadline will not be valid, and you will be bound by the arbitration clause. You may deliver your opt-out notice by mail to the following address: 600 Sea Island Road, #326, Saint Simons Island, GA 31522. If you opt out of the arbitration clause in accordance with this Section, you will not be subject to the arbitration requirement specified in the contract. However, all other terms and conditions of the contract will remain in full force and effect. BY OPTING OUT OF THE ARBITRATION CLAUSE, YOU UNDERSTAND AND AGREE THAT ANY DISPUTES WILL STILL BE RESOLVED IN ACCORDANCE WITH ALL OTHER DISPUTE RESOLUTION PROVISIONS SET FORTH IN THE CONTRACT, INCLUDING THE INFORMAL DISPUTE RESOLUTION PROVISION. Please note that failure to follow the opt-out procedure within the specified timeframe will result in your acceptance of the arbitration clause as outlined in the contract. Arbitration Procedures If this Section applies and the Dispute remains unresolved despite Informal Dispute Resolution efforts, either you or the Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”) will administer all Disputes, which will be arbitrated by a single arbitrator. The arbitration will only proceed as an individual arbitration and may not be commenced as a class arbitration, consolidated action, or representative proceeding. All matters, including the scope of this Section, will be determined by the arbitrator The arbitrator may award relief on an individual basis as permitted by applicable law and is not empowered to grant relief to, against, or for the benefit of any person who is not a party to the arbitration. The arbitrator will issue any award in writing but is not required to provide a statement of reasons unless requested by a party or if mandated by applicable law. This award will be final and binding on the parties to the fullest extent allowed by law and may be entered in any court with jurisdiction over the parties for enforcement purposes. Location of Arbitration – You or the Company must initiate arbitration in Glynn County, Georgia or in another location agreed upon by you and the Company in writing. Arbitration may be attended remotely by telephone, video conference (e.g., Zoom), or other electronic means agreed upon by both parties and the arbitrator. Remote attendance shall be deemed to satisfy any requirement for in-person appearance at arbitration hearings. Payment of Arbitration Fees and Costs – You and the Company will split equally pay all arbitration filing fees, hearing fees, or costs and expenses directly related to the arbitrator. Each party is responsible their own attorneys’ fees and all other costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or the Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs. Class Action Waiver Except as otherwise provided in this Section, the arbitrator is expressly prohibited from consolidating multiple claims or presiding over any form of class or representative proceeding, including class actions, consolidated actions, representative actions, or private attorney general actions, unless there is explicit written agreement from both you and the Company following the initiation of arbitration. Should you choose to pursue your Dispute in court by opting out of arbitration, as provided herein, this Class Action Waiver will not be applicable to you. Neither you nor any other user of the App may act as a class representative, class member, or participate in any class, consolidated, or representative proceeding without fulfilling the opt-out requirements specified above. Jury Waiver Unless opted you properly opt out of Arbitration as provided in this Section, you understand and agree that by entering into these Terms, to the extent that a civil jury trial would otherwise be available to you and the Company, you and the Company are each waiving the right to a jury trial. In the absence of this Section, you and the Company might otherwise have had a right or opportunity to bring Disputes before a jury, and/or to participate or be represented in a case filed in court by others (including class actions). Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. YOU UNDERSTAND AND AGREE THAT THE DECISION TO WAIVE YOUR RIGHT TO A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE COMPANY TO ENTER INTO THIS AGREEMENT WITH YOU AND THAT THE COMPANY WOULD NOT DO SO ABSENT YOUR AGREEMENT TO THIS PROVISION. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT THIS PROVISION DOES NOT AFFECT YOUR ABILITY TO SEEK INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES IN COURT. This jury waiver provision shall be construed and enforced to the fullest extent permitted by law. This Section shall survive any termination of this Agreement
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflicts of law Sections. This section shall survive any termination of this Agreement.
15. Jurisdiction and Venue. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, that is not subject to arbitration, as provided in this Agreement, shall be exclusively resolved by the competent courts located in Glynn County, Georgia. Each party hereby irrevocably submits to the jurisdiction of such courts and waives any objection to venue in such courts This section shall survive any termination of this Agreement.
16. Intellectual Property. The Company asks others to respect its intellectual property rights and the intellectual property rights of others. The content and materials available on the App, including but not limited to text, graphics, logos, button icons, images, audio clips, and software used in connection with the App are the property of the Company or its licensors and are protected by United States and international copyright, trademark, and other intellectual property laws. Other content and materials including but not limited to text, graphics, logos, button icons, images, audio clips, and software used in connection with the App may be the trademarks of other third parties. Your use of the App grants you no right or license to reproduce or otherwise use any intellectual property of the Company or other third parties. If you believe that any material located on or linked to the App violates your intellectual property rights, you are encouraged to notify the Company immediately. This section shall survive any termination of this Agreement.
17. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event shall the Company or its affiliates, directors, officers, employees, agents, partners, and licensors be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, however arising (whether in contract, tort, including negligence or otherwise), out of or in connection with your use of the App or other losses whether tangible or intangible arising out of or in connection with:
- a. Your use of or inability to use the App for any reason.
- b. Any content or materials obtained from or through the App.
- c. Any third-party services, content, or products accessed through the app, including any damages caused by such third parties.
- d. Any unauthorized access to or alteration of your transmissions or data
- e. Any bugs, viruses, trojan horses, or the like that may be transmitted to or through the App.
- f. Any errors or omissions in any content or materials or for any loss or damage incurred as a result of the use of any content or materials posted, emailed, transmitted, or otherwise made available through the App.
THE COMPANY'S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE APP SHALL BE EXPRESSLY LIMITED TO AND IN NO EVENT EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO THE COMPANY FOR ACCESS TO THE APP DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
The App is provided "as is" and "as available" without warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, or reliability.
The limitations of liability set forth herein are fundamental elements of the basis of the bargain between the Company and you.
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to you.
You agree that the foregoing limitations of liability are reasonable and reflected in the pricing and the Terms of this Agreement and that absent your agreement to this section, the Company would not provide access to the App to you.
You acknowledge and agree that the disclaimers and limitations of liability set forth in these Terms reflect a reasonable and fair allocation of risk between you and the Company and that you are solely responsible for determining the appropriateness of using the App and assume any risks associated with your use of the App.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE, MOBILE APPLICATIONS, OR SERVICES, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE, MOBILE APPLICATIONS, OR SERVICES. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE, MOBILE APPLICATIONS, OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE, MOBILE APPLICATIONS, OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON.
This section shall survive any termination of this Agreement.
18. Storage. The Company is not obligated to store any of your content. The Company assumes no responsibility or liability for the deletion or accuracy of any content, nor for any failure to store, transmit, or receive content, or for the security, privacy, storage, or transmission of any other communications associated with the App.
19. Content Provided by Other Users. The Company has not reviewed, and cannot review, all of the material, including computer software, posted to the App, and cannot therefore be responsible for that material’s content, use or effects. By operating the App, the Company does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The App may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The App may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. the Company disclaims any responsibility for any harm resulting from the use by visitors of the App, or from any downloading by those visitors of content there posted. You use all user content and interact with other users at your own risk.
20. Investigations, Monitoring, & No Obligation To Pre-Screen Content. The Company may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review any content on the App at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any content, including without limitation chat, text, or voice communications. The Company reserves the right to: (a) remove or refuse to post any of your content for any or no reason in the Company’s sole discretion; (b) take any action with respect to any of your content that the Company deems necessary or appropriate in our sole discretion; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if the Company otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason the Company, may, at its sole discretion immediately terminate your license to use the Service, or change, alter or remove your content, in whole or in part, for any reason or no reason, without prior notice to you. THE COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
21. Termination and Modification.
The Company reserves the right to suspend or terminate your access to the App at any time, with or without cause, and without prior notice to you.
Upon termination, all rights and licenses granted to you under this Agreement shall cease immediately and you shall discontinue all use of the App.
The Company may also in its sole discretion and at any time modify or discontinue the App or any or all features or services offered through the App with or without prior notice.
You agree that any termination of your access to the App under any provision of this Agreement may be affected without prior notice, and acknowledge and agree the Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the app.
Further, you agree that the Company shall not be liable to you or any third-party for any termination of your access to the App.
Following termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
22. Maintenance and Support.
As with any product or service, sometimes the App will have certain bugs, glitches or other issues that require certain attention. If you encounter any such issue, please bring it to the Company’s attention by emailing at support@tivafitness.com. The Company by will look into the issue and resolve it, if necessary, at the Company’s sole discretion.
There may be occasions when the Company must temporarily suspend the App or certain services to address an issue. Please understand that the Company is not liable if the Services are unavailable for a reasonable business period.
At certain times, your access to the App may be unavailable or limited for necessary repairs, routine maintenance, or to roll out new features. Access will be restored as soon as possible. During the time when the App or features may be unavailable, the standard procedures for cancellations remain in effect.
23. Entire Agreement. This Agreement constitute the entire agreement between you and the Company regarding your use of the App, superseding any prior agreements between you and the Company. This section shall survive any termination of this Agreement.
24. Modifications and Updates to the Agreement. When changes are made to this Agreement, the Company will make a new copy of this Agreement available on the Service, and the Company will also update the “Last Updated” date at the top of this Agreement. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account. The Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE. This section shall survive any termination of this Agreement.
25. California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service and the mobile applications are provided by Tiva, LLC, a Georgia limited liability company, 600 Sea Island Road, #326, Saint Simons Island, GA 31522. If you have a question or complaint regarding the Service or the mobile applications, please contact customer service at support@tivafitness.com. You may also contact us by writing Tiva, LLC, 600 Sea Island Road, #326, Saint Simons Island, GA 31522, Attn.: Legal Department. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Boulevard, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
26. Severability Provision. If any provision or section of this agreement is found to be unlawful, void, or unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from the agreement without affecting the validity or enforceability of the remaining provisions. The parties agree to replace the invalid or unenforceable provision with a valid and enforceable provision that most closely aligns with the intent of the original provision. Moreover, if any part of this agreement is deemed invalid or unenforceable in one jurisdiction, it shall not affect the validity or enforceability of the agreement as a whole in any other jurisdiction.
27. Contact Us. If you have any questions about this Agreement or otherwise need to contact us for any reason, you can reach us at Tiva, LLC, 600 Sea Island Road, #326, Saint Simons Island, GA 31522; support@tivafitness.com
28. Consent to Toll-Free Messaging & Accountability Notifications.
By providing a phone number or opting in to receive messages through this application, you confirm that you have the legal authority to provide consent for that number and agree to receive SMS and MMS messages, including automated messages, from TIVA via toll-free messaging services powered by Twilio.
If you are designated as an accountability contact, you acknowledge that by opting in, you consent to receive notifications if the individual that designated you as such does not successfully complete a scheduled workout.
Messages may include reminders, alerts about missed workouts, and other accountability-related notifications. Message frequency may vary, and standard message and data rates may apply.
By using this service, you also agree to comply with any applicable terms and conditions set forth by Twilio, available at [https://www.twilio.com/en-us/legal/tos](https://www.twilio.com/en-us/legal/tos). Your consent is not a condition of purchase, and you may opt out at any time by replying STOP to any message. For assistance, reply HELP or contact support@tivafitness.com