Effective Date: July 22, 2018
These Terms affect your legal rights, responsibilities and obligations and govern your use of the Service, are legally binding, limit Vivametrica’s liability to you and require you to indemnify us and to settle certain disputes through arbitration. If you do not wish to be bound by these Terms and any Additional Terms, disconnect your Device and discontinue use of the Service.
In some instances, additional or different terms, posted on the Service, apply to your use of certain parts of the Service (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, these Terms will control unless the Additional Terms expressly state otherwise.
Updates to these Terms and Additional Terms
We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Service as more fully explained here.
1. OWNERSHIP AND YOUR RIGHTS TO USE THE SERVICE AND CONTENT.
A. Requirements for Use. Unless otherwise stated, Vivametrica’s products and Services are not intended for children. Except where prohibited, the Services are available to a general audience older than age 13 (in the United States) or age 16 (in the EEA), or with parental consent where applicable. Full use of the Services requires at least one supported Device, internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors. The Services are not a guaranteed part of any third party product or service offering, and no purchase or obtaining of any third party product or service shall be construed to represent or guarantee you access to the Services.
B. Agency. You represent that you are using the Services for its intended purpose. If you are registering or using the Services on behalf of a company or other organization, you represent that you have authority to legally bind your employer by your actions.
C. Ownership. The Service and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by Vivametrica, our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Service is the property of Vivametrica, our licensors or certain other third parties, and is protected by Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Vivametrica owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service.
D. Your Rights to Use the Service and Content. Your right to use the Service and content is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the Service and the Intellectual Property shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Service and the content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “Vivametrica Licensed Elements”):
- Display, view, use, and play the content on a computer, mobile or other internet enabled or permitted Device and/or print one copy of the content (excluding source and object code in raw form or otherwise) as it is displayed to you;
- If the Service includes a “Download” link next to a piece of content, you may only download a single copy of such content to a single Device;
- Download, install and use one copy of any software, including apps, that we make available on or through the Service (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; provided, however, that you understand and agree that (i) by allowing you to download the Software, Vivametrica does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software’s owner (which may be Vivametrica and/or its third party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software without the prior written consent of Vivametrica; (iii) you may not assign, rent, lease, or lend the Software to any person or entity and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law;
- If made available to you, obtain a registered personal account (and/or related username and password) on the Service;
- Use any other functionality expressly provided by Vivametrica on or through the Service for use by users, subject to these Terms (including, without limitation, functionality to create and/or User-Generated Content (as defined below)) and any applicable Additional Terms.
E. Reservation of all Rights Not Granted as to Content and Service. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Service and content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY VIVAMETRICA AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any content or the Service for any purpose is prohibited.
2. RESTRICTIONS ON THE USE OF THE SERVICE AND CONTENT
A. Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Vivametrica; (iv) to the maximum extent not prohibited by applicable law, decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service by any means whatsoever or modify any Service source or object code or any Software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Vivametrica, or other users of the Service; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Service; (vii) harvest or otherwise collect or store any information (including personally information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other intellectual property notices contained in such content; (iv) will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such content (other than to the extent of your specifically permitted use of the Vivametrica Licensed Elements, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Vivametrica or, in the case of content from a licensor, the owner of the content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience.
C. Availability of Service and Content. Vivametrica, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Service and/or content (and any elements and features of them), in whole or in part, for any reason, in Vivametrica’s sole discretion, and without advance notice or liability.
D. Precautions. Content found through the Services or Site is for informational purposes only and is not intended to replace the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You should always consult a physician before starting or modifying an exercise program, changing your diet or if you have any questions regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or through the Services or the Site. You should consult with your physician before following any training, nutrition or other instructions you receive through the Services or participating in any event announced on or through the Services. Not all exercises or activities described on the Services are suitable for everyone. You should understand that when participating in any exercise or exercise program, there is the possibility of physical injury and/or death. If you think you may have a medical emergency, call your physician or 911 immediately. If you feel discomfort or pain, immediately stop the activity causing such discomfort or pain. By using the Services, you represent that you have received consent from your physician to participate in the programs, workouts, and exercises described.
We are not responsible for any health problems that may result from training programs, products, or events you learn about through the Vivametrica Services. If you engage in any exercise program you receive or learn about through the Vivametrica Services you agree that you do so at your own risk and are voluntarily participating in these activities.
E. Information Only. We try to provide helpful and accurate information on the Services, but we make no endorsement, representation or warranty of any kind about any information, services or recommendations made available through the Services. We are not responsible for the accuracy, reliability, timeliness, effectiveness, or correct use of information you receive through the Services. If you rely on any information provided by Vivametrica, Vivametrica employees/agents/contractors, or others appearing on or contributing content to the Services, you do so solely at your own risk.
3. CREATING AN ACCOUNT
A. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Passwords must be personal, unique username (or email address) that does not violate the rights of any person or entity, or is offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us [here] of any unauthorized use of your account, password, or username, or any other breach of security. You will not sell, transfer, or assign your account or any account rights.
B. Accounts may only be set up by an authorized representative of the individual that is the subject of the account. We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.
4. NOTICES, QUESTIONS, AND CUSTOMER SERVICE
A. You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. If you have a question regarding the Service, you may contact Vivametrica’s Customer Support by sending an email here or calling us at +1(403)984-5457. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.
5. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
A. We strive to accurately describe our products or services offered on the Service; however, we do not warrant that such specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing, availability, or specifications, Vivametrica shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit or other account prior to cancellation, we will reissue credit to your account. Additional Terms may apply.
6. THIRD-PARTY SERVICES; ADVERTISEMENTS; DEALINGS WITH THIRD PARTIES
B. Fitbit and Other Platforms and Devices. If you are accessing or using the Service through Fitbit or other third party platforms or services, those Third-Party Services’ own terms and policies apply to such access and usage.
C. Dealings with Third Parties. Any interactions, correspondence, transactions, or dealings you have with any third parties found on or through the Service (including on or via Third-Party Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Vivametrica disclaims all liability in connection there with.
7. DISPUTES AND DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND VIVAMTERICA HAVE AGAINST EACH OTHER ARE RESOLVED
If a dispute arises between you and Vivametrica, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Vivametrica agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or our Services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
A. Law and Forum for Disputes. This Agreement and any dispute or claim you have against Vivametrica shall be governed in all respects by the laws of the Province of Alberta and the federal laws of Canada applicable therein. You agree that any claim or dispute you may have against Vivametrica must be resolved by a court located in Calgary, Alberta, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within the Province of Alberta for the purpose of litigating all such claims or disputes.
B. Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than Cdn$25,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event that a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
C. Improperly Filed Claims – All claims you bring against Vivametrica must be resolved in accordance with this Resolution of Disputes section. All claims filed or brought contrary to the Resolution of Disputes section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Vivametrica may recover attorneys’ fees and costs, provided that Vivametrica has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
8. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICE AND SITE IS AT YOUR SOLE RISK AND THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by law, Vivametrica and their direct and indirect subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Vivametrica Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, to the operation of the Site and the Services, their content, Vivametrica Licensed Elements, User Generated Content (“UGC”), any information made available by or through the Site or Services or other Vivametrica products or services.
B. IN ADDITION, THE VIVAMETRICA PARTIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE WEBSITE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, VIVAMETRICA DOES NOT WARRANT THAT USE OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.
9. LIMITATIONS OF OUR LIABILITY
IN NO EVENT WILL VIVAMETRICA BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITE OR SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT VIVAMETRICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF VIVAMETRICA, ARISING FROM OR RELATING TO THE WEBSITE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY) IS LIMITED TO $100. VIVAMETRICA’S AFFILIATES, PROVIDERS AND PARTNERS HAVE NO LIABILITY WHATSOEVER ARISING FROM THE WEBSITE. In some locations applicable law may not allow certain of the limitations described above, in which case such limitations may not apply to you.
10. UPDATES TO TERMS
A. It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Service.
11. GENERAL PROVISIONS
A. Vivametrica’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Vivametrica a right of consent or approval, or permits Vivametrica to exercise a right in its “sole discretion,” Vivametrica may exercise that right in its sole and absolute discretion. No Vivametrica consent or approval may be deemed to have been granted by Vivametrica without being in writing and signed by an officer of Vivametrica.
B. Indemnity. You agree to, and you hereby, defend (if requested by Vivametrica), indemnify, and hold Vivametrica Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Vivametrica Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your UGC; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Vivametrica Parties’ use of the information that you submit to us (including your UGC) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Vivametrica Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Vivametrica Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Vivametrica Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Vivametrica Party.
C. Operation of Service; Availability of Products and Services; International Issues. Vivametrica controls and operates the Service from the Canada, and makes no representation that the Service is appropriate or available for use beyond the Canada. If you use the Service from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
D. Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
G. Assignment. Vivametrica may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Vivametrica.
H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Vivametrica in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Additional Terms for iOS and Windows Devices:
iOS – Apple
- Vivametrica grants you the right to use the Application only on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
- Apple is not responsible for the investigation, defense, settlement, and discharge of any third party intellectual property infringement claim.
- Apple is not responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
- In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application.
Windows – Microsoft
- You may install and use one (1) copy of the Application on up to five (5) devices you personally own or control and which are affiliated with the Windows Live ID associated with your Windows Marketplace account. You may not install or use a copy of the Application on a device you do not own or control.
- Microsoft, your device manufacturer, and (if applicable) your wireless carrier are not responsible for providing support services for the Application.
- Microsoft, the wireless carriers over whose network the Application is distributed (if applicable), and each of their respective affiliates and suppliers (collectively, “Disclaiming Distributors”) give no express warranty, guarantee, or conditions under or in relation to the Application. To the extent permitted under your local laws, the Disclaiming Distributors exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, and non-infringement.
- To the extent not prohibited by law, you will not seek to recover any consequential, lost profit, special, indirect, or incidental damages from any Disclaiming Distributor.