This TREVITA LIFESTYLE APPLICATION AGREEMENT (the “Agreement”) is made by and between TreVita, Inc. (“TREVITA”) and the end user ("you", "your" or "End User") governing your use of the Trevita Lifestyle Application and Website (as defined herein). The Mobile Device Software is licensed, not sold, to you.
BY DOWNLOADING/INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
"Deidentified" means data that has been processed to remove, hide, encrypt, anonymize or aggregate identifying information such that one could not, using reasonable efforts, link such information back to you.
"End User Data" means data entered or uploaded by you to the Hosted Software via the Mobile Device Software.
"Hosted Software" means the online software, platform and websites which you can access via the Mobile Device Software and your account that are hosted and maintained by TREVITA.
"Mobile Device Software" means the downloadable software application offered by TREVITA through which your TREVITA account is accessed.
"Mobile Device" means a smartphone, tablet, or other mobile computing device on which the Mobile Device Software is installable or installed.
"Services" means a web-based software platform with interactive tools to allow End Users to track milestones and healthy habits and receive behavioral, diet and fitness recommendations.
"TREVITA Data" means all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
"Website" means the website accessible at TREVITA.com or via the Mobile Device Software.
TREVITA, through the Mobile Device Software, provides the Services to you. Subject to your compliance with the terms of this Agreement, TREVITA grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
download, install, and use the Mobile Device Software for your personal, non-commercial use on your Mobile Device strictly in accordance with the Mobile Device Software's documentation; and
(b) access and use on such Mobile Device the Services made available in or otherwise accessible through the Mobile Device Software, strictly in accordance with this Agreement.
You shall not:
(i) copy the Mobile Device Software;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software;
(iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software or any part thereof;
(iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, to any third party for any reason, including by making the Mobile Device Software available on a network where it is capable of being accessed by more than one device at any time;
(vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software; or,
(vii) upload or introduce any virus or malware to the Hosted Software.
(b) You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data.
Reservation of Rights
You acknowledge and agree that the Mobile Device Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Device Software under this Agreement or any other rights thereto other than to use the Mobile Device Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. TREVITA and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Mobile Device Software and Website. All rights not specifically granted in this Agreement are reserved by TREVITA. TREVITA shall own all rights in any functionality, features, modification or customization of the Mobile Device Software.
Collection and Use of Your Information
Ownership and Use of Data
All ownership rights in and to the Mobile Device Software shall remain exclusively with TREVITA and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
The Mobile Device Software and access to TREVITA's Hosted Software are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Hosted Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Hosted Software from outside the United States, you are responsible for compliance with local laws.
TREVITA may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that TREVITA has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
the Mobile Device Software will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates. In order to be able to fully utilize the Mobile Device Software, you must promptly download and install all Updates. You acknowledge that the Mobile Device Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
Third Party Materials
The Mobile Device Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that TREVITA is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. TREVITA does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions.
Term and Termination
(a) The term of Agreement commences when you download/install the Mobile Device Software or acknowledge your acceptance, and will continue in effect until terminated by you or TREVITA as set forth in herein.
(b) You may terminate this Agreement by deleting the Mobile Device Software and all copies thereof from your Mobile Device.
(c) TREVITA may terminate this Agreement at any time without notice if it ceases to support the Mobile Device Software, which TREVITA may do in its sole discretion. In addition, TREVITA may immediately terminate this Agreement with or without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate;
(ii) you must cease all use of the Mobile Device Software and delete all copies of the Mobile Device Software from your Mobile Device; and
(iii) your access to TREVITA's Hosted Software, your account and your End User Data will be terminated.
(e) Termination will not limit any of TREVITA's rights or remedies at law or in equity.
Disclaimer of Warranties
(a) THE APPLICATION IS PROVIDED TO YOU "AS IS, AS AVAILABLE" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TREVITA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TREVITA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(b) WITHOUT LIMITING THE FOREGOING, NEITHER TREVITA NOR ANY TREVITA PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE TREVITA APPLICATION, OR THE INFORMATION, CONTENT, THE TREVITA SOFTWARE, AND MATERIALS OR PRODUCTS INCLUDED THEREON; (II) THAT THE TREVITA APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE TREVITA APPLICATION; OR (IV) THAT THE TREVITA APPLICATION, ITS SERVERS, THE CONTENT, OR E-MAILS SENT FROM OR ON BEHALF OF TREVITA ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS.
(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
(d) You agree that TREVITA assumes no responsibility for any content you submit, upload, create or make available through the Mobile Device Software.
(e) TREVITA is not liable for the acts or omissions of its contractors, vendors and service providers.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TREVITA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION AND (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TREVITA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
TREVITA DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE TREVITA APPLICATION, TREVITA SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE TREVITA APPLICATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF TREVITA.
UNDER NO CIRCUMSTANCES SHALL TREVITA BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE TREVITA APPLICATION, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE TREVITA APPLICATION OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO TREVITA RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE MOBILE DEVICE SOFTWARE AND YOU TO THE TREVITA SERVICES AVAILABLE THROUGH THE MOBILE DEVICE SOFTWARE.
You agree to indemnify, defend and hold harmless TREVITA and its officers, directors, employees, agents, affiliates, service providers, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Mobile Device Software or your breach of this Agreement.
This Agreement, including all documents and exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of California, United States of America without giving effect to any conflict of laws provisions thereof.
Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
a. MANDATORY MEDIATION. In the event there is any dispute between the Parties to this Agreement relating in any way to or arising out of or related to this Agreement, the Parties must mediate such dispute before commencement of any legal action. No party to this Agreement can bring legal action against another party to this Agreement without first participating in mediation, unless one party refuses to submit to mediation and legal action is brought to specifically enforce this mandatory mediation provision of this Agreement.
b. MANDATORY ARBITRATION. Any and all issues, questions, disputes, claims, or controversies arising out of or relating to this Agreement or any provision thereof, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration. All claims shall be heard by a single arbitrator and shall be governed by the expedited commercial arbitration rules of the American Arbitration Association (“AAA”), or an equivalent regime, in effect at the time the arbitration is commences, as the same may be modified during the arbitration. Without a hearing and based only on the documentary evidence presented by the parties, the arbitrator shall determine all preliminary matters including whether a dispute is subject to arbitration and discovery issues. The arbitrator shall have the authority to award the same damages and other relief that a court could award including injunctions and computations of actual damages or offsets, if applicable; however, under no circumstances shall the arbitrator be empowered to award punitive or exemplary damages. The arbitrator shall issue a reasoned, written decision identifying the prevailing party and explaining the decision and any damages awarded. The arbitrator’s decision will be final and binding upon the parties. The fees charged by the arbitrator (and its parent organization) shall be borne by the parties as determined by the arbitrator, except for any initial registration fee, which the parties shall bear equally. The prevailing party in any arbitration, its execution or its enforcement, shall recover its reasonable attorneys’ fees and costs, in addition to such other relief as may be awarded. Arbitration proceedings shall be maintained as strictly confidential.
c. EFFECTS OF MANDATORY ARBITRATION. Each party specifically understands, acknowledges, and agrees that by agreeing to arbitrate in the manner required under this Section , such party is waiving any right it, he, or she may have to bring before a court (other than for enforcement of any award), any claim that such party may have arising out of, or for any violation of, any federal, state, local, or other law, regulation, or ordinance, or any other rights protected or arising under any law, rule, or regulation. Nevertheless, each party agrees to waive all such rights it, he, or she may have and agrees to submit all disputes to binding arbitration in accordance with the terms of this Section.
d. Any arbitrations under this Agreement shall be conducted in English, in San Diego County, California, at such time and place selected by the arbitrator.
This Agreement constitutes the entire agreement between you and TREVITA with respect to the Mobile Device Software and the use of the Hosted Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.