The following describes the Terms of Service (“Terms of Service”), which govern your access and use (both as a visitor and a registered user) of our online and mobile tools, applications, websites, platforms, services and, except as otherwise provided in these Terms of Service, all text, graphics, images, information or other materials available through our services we own and/or operate and that contain a link to, or are accessible after agreeing to, these Terms of Service (collectively, the “Services”). PLEASE READ AND REVIEW THESE TERMS OF SERVICE CAREFULLY.
By using the Services or becoming a registered user, you agree to be legally bound by these Terms of Service. If you do not wish to be bound by these Terms of Service, you are not authorized to use the Services in any way, and you must discontinue any use immediately. References in these Terms of Service to “Motivve Studios”, “we”, “us” or “our” are references to Motivve Health Studios, LLC d/b/a Motivve Studios and its employees, officers, directors, contractors, subsidiaries, affiliate entities, and any successor entities. Any references to “you” or “your” in these Terms of Service means the person or entities using the Services that are offered through the Services, including without limitation individuals making benefits elections for themselves or their dependents. If you are helping another person use our Services, these Terms of Service constitute a legally binding agreement between you and the person being helped and us, and “you” or “your” shall also include the person being helped.
General Terms and Conditions
Motivve Studios was designed to make engaging you with your health more fun and accessible. The Services that we offer include an entire suite of fun, and easy-to-use mobile games that promote improved health and provide convenient in-game access to various applications, tools, resources, trivia, health-based activities, and personalized missions on behalf of clients and/or customers that may include, without limitation, health plans and/or health insurers, healthcare providers and networks, pharmaceutical companies, employers, other providers of healthcare related products or services, and companies that contract with health plans and/or health insurers, healthcare providers and networks, pharmaceutical companies, employers, other providers of healthcare related products or services, and/or Motivve Studios (collectively, the “Motivve Studios Partners''), and all other tools, features, functionality, resources, programs, recommendations, rewards, incentives, and services made available by us to you. Some Services may be subject to additional guidelines, rules, or terms (“Additional Terms”) that are contained within the applicable Services. If there is any conflict between these Terms of Service and the Additional Terms for any Service, the Additional Terms control with respect to that Service and all other provisions in the Terms of Service that are not in conflict also apply.
By agreeing to these Terms of Service, you also agree to our Reward Programs Terms and Conditions in connection with any reward or incentives available through the Services (if offered and available). Those Reward Terms and Conditions are incorporated herein by reference.
Motivve Studios Does Not Provide Medical Advice; For Medical Advice, Talk With Your Doctor
THE SERVICES ARE NOT INTENDED TO AND DO NOT PROVIDE HEALTH OR MEDICAL ADVICE. MOTIVVE STUDIOS DOES NOT PROVIDE ANY MEDICAL DIAGNOSIS, TREATMENT, OR CARE. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, SEEK IMMEDIATE MEDICAL ATTENTION OR CALL 911 IMMEDIATELY. DO NOT DELAY, DISREGARD, DISCONTINUE, OR AVOID MEDICAL TREATMENT OR ADVICE FROM YOUR LICENSED HEALTHCARE PROFESSIONALS BECAUSE OF ANYTHING YOU MAY HAVE READ OR LEARNED WHILE USE THE SERVICES. THE INFORMATION, GAMES, AND FEATURES OF THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY TO ASSIST YOU IN LEARNING ABOUT YOUR HEALTH AND DISEASE MANAGEMENT. THE SERVICES ARE NOT AND SHOULD NOT BE USED AS A SUBSTITUTE FOR MEDICAL ADVICE AND TREATMENT PROVIDED BY LICENSED HEALTHCARE PROFESSIONALS.
Always seek the advice of a qualified medical provider with any questions you may have about your health and before undertaking or changing an exercise regimen, diet, weight loss program, or course of medical treatment; taking any drugs, medicines, or supplements; accessing a health-related resource or program; or engaging in any physical activity, weight loss program, or diet related to the games, challenges, missions, or other tools or features available through the Services. Nothing available through any Services is intended or should be taken to be the practice of medical or counseling care. For purposes of these Terms of Service, the practice of medical or counseling care includes without limitation psychiatry, psychology, medical, nursing, or professional health care advice or services, or the practice of medicine, nursing, or professional health care, psychotherapy, or providing health care treatment, instructions, diagnosis, prognosis or advice. We make no representations or warranties that any particular drug or treatment is safe, appropriate, or effective for you, or that any particular health care provider is appropriate for you. You should confirm all healthcare related information with your health care professionals before making health care-related decisions. Your use of the Services does not create in any way a physician-patient relationship, any sort of confidential, fiduciary, or professional relationship, or any other special relationship that would give rise to any duties on our part.
Motivve Studios does not recommend or endorse any specific tests, health care providers, procedures, treatments, products, drugs, equipment, supplies, regimens, supplements, benefits, opinions, or other information that may appear on or through the Services. If you rely on any of the information provided by or through the Services, or by Motivve Studios employees or other users of the Services, you do so solely at your own risk.
Third-Party Services and Links
Our Services may contain links to, references, or provide interfaces with other services and websites that are owned and operated by third parties, such as wellness programs, disease management programs, health applications, coaching services, virtual consultations offered by telehealth providers, or personal health devices (“Third-Party Services”) that are provided as a convenience to you and are limited to those that meet Motivve Studios purposes. The inclusion of a link, reference or interface does not mean or imply that these Third-Party Services have endorsed Motivve Studios or that Motivve Studios has endorsed the Third-Party Service, its content, or any merchandise, products, or service provided therein (and their associated trademarks and logos).
Motivve Studios does not guarantee the availability or functionality of these Third-Party Services. We are not responsible for the accuracy, completeness, quality, availability, timeliness, validity, legality, and decency of the content, products, opinions, recommendations, services, or any other aspect of the materials or tools made available through any Third-Party Services or for your use of them. Your use of Third-Party Services is subject to the terms and conditions of use for such websites and/or services at your own risk. Motivve Studios shall not be responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused in connection with your use of Third-Party Services.
Unless otherwise indicated in these Terms of Service, the Services are not intended or designed to be used by children under the age of 13. You may not use the Services if you are under the age of 13. If you are between 13 and the age of majority in your state and otherwise not emancipated, a parent and/or guardian must agree to these Terms of Service on your behalf.
Account and User Registration
In order to access certain features of the Services, you must register to create an account (“Account”) and become a registered user (“Registered User”). During the registration process, you will be required to provide certain information about yourself, such as your email address, and may be asked to provide your name, date of birth, and answer a few questions in order to verify and authorize your Account and become a Registered User. You must be legally competent to enter into contracts to register with our Services. During registration, you’ll need to provide an email address and password (your “User ID”). You agree to provide truthful, accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Your User ID may let you sign into products, websites, and services provided by Motivve Studios, some Motivve Studios Partners, and Third-Party Services. You grant access to Motivve Studios to share certain information when you choose to use your User ID to sign in to Motivve Studios Partners and Third-Party Services’ products, websites and services. You should only grant permission if you trust the third party's product, website, or service. The third party may automatically sign you in the next time you use it.
You may have the option of becoming a Registered User and signing into the Services through your Google, Facebook, or other linked accounts (collectively, “Third-Party Linked Account”). Should you choose to become a Registered User and/or sign into your Account through a Third-Party Linked Account, you agree to provide Motivve Studios the necessary information (as authorized) by that Third-Party Linked Account to become a Registered User. This includes giving Motivve Studios access to the username, email address, and other basic account information associated with the Third-Party Linked Account. The specific information that Motivve Studios requests from the Third-Party Linked Account will be provided at the time of registration and/or sign in. Please review the terms and conditions and privacy policies associated with the Third-Party Linked Account and what information that third party will share with Motivve Studios prior to using the Third-Party Linked Account to become a Registered User of Motivve Studios.
You agree that Motivve Studios reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Motivve Studios retains the right to disable or delete any Account for any reason in our sole discretion. You are responsible for safeguarding your User ID. You agree not to disclose your User ID to any third party and take sole responsibility for any activities or actions under your User ID, whether or not you have authorized such activities or actions. If your User ID or other activation codes you use with the Services are compromised, you will immediately notify Motivve Studios. Motivve Studios is not liable for any losses by any party caused by any unauthorized use of your User ID.
It is your responsibility to safeguard the devices you use to access the Services (such as laptops, tablets, and mobile devices, etc) and to use appropriate security settings on those devices (such as pins and/or passcodes, password protected screen savers, multi-factor authentication, and encryption, etc). If those devices are lost, stolen, misplaced, and/or they are not properly secured by you, third parties and/or others may have unauthorized access to your Account and your personal information using those devices. Motivve Studios is not responsible or liable, directly or indirectly, for any losses by any party caused by any unauthorized use of your Account and/or User ID from your devices being lost, stolen, or misplaced.
Use of a Third-Party Linked Account or Persistent Log-In
Our Services may provide the option of using a Third-Party Linked Account and/or persistent log-in with your Account, such as (i) having our Services remember your user email address and/or password, (ii) logging into our Services using a Third-Party Linked Account, or (iii) logging into our Services with verified unique device identifiers associated to your Account (including, without limitation, facial and fingerprint authorization). You acknowledge and agree that if you choose to use a Third-Party Linked Account and/or persistent log-in to more conveniently access your Account, you are doing so at your own risk as third parties and/or others may have unauthorized access to your Account and information through your device (such as smartphones, tablets, or computers) if you do not properly safeguard the devices you use to access the Services (as detailed in the section above), and/or allow an unauthorized third party to use your device. If you are concerned about the unauthorized use or disclosure of information by choosing to use a Third-Party Linked Account and/or persistent log-in, you should elect to not use the Third-Party Linked Account and/or persistent log-in feature. You are responsible for safeguarding your Account and take full responsibility for any activities or actions under your Account while using a Third-Party Linked Account and/or persistent log-in, whether or not you have authorized such activities or actions.
Appropriate Use of Services and Prohibited Conduct
You acknowledge and agree that you are not permitted to, and you will not, do or assist anyone else in doing any of the following (“Prohibited Conduct”):
- Use the Services in any manner that violates any laws and/or regulations; Advocate or encourage illegal activity;
- Use the Services for commercial purposes (including by posting advertising or solicitations) or in any manner that competes with any product or service of Motivve Studios;
- Collect, copy, or harvest data or materials from the Services without our express written permission;
- Remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary rights or notices marked on the Services;
- Collect, copy, or use data about another Registered User without his or her knowledge and consent;
- Post or communicate harassing, threatening, harmful, obscene, defamatory, abusive, fraudulent, illegal, infringing, offensive, hateful, or libelous materials, as determined by Motivve Studios at its sole discretion;
- Attempt to manipulate the Services (or any of the features or functionality of the Services) in an unfair, improper, or inappropriate manner, or in a manner that creates an unfair, improper or inappropriate advantage or benefit for you or any other user (all as determined by us in our sole judgment), such as, for example, gaming our system to earn tickets, rewards, or other benefits (if offered);
- Use any of our or our licensors’ marks, logos, or any source identifiers of our programs or services (whether registered or unregistered) in any unauthorized manner, including as meta tags or ad keywords;
- Misrepresent your identity or provide us with any false information at any time on or through the Services;
- Allow another Registered User or unauthorized third party to use your credentials to access the Services, or use the credentials of another Registered User to do the same; or
- Engage in any activity that threatens the security or functionality of the Services, including but not limited to:
- Attempting to gain unauthorized access to any Services, user accounts, computer systems, or networks through any means;
- Introducing viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Using manual or automated software, devices, scripts, robots, backdoors, or other means or processes to access, “scrape,” “crawl,” or “spider” any web pages or other services contained in the Services. If you are blocked from the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);
- Attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Intentionally or unintentionally launching or facilitating any denial-of-service attack on the Services;
- Engaging in viral messaging, spamming, spimming, or sending of unsolicited advertisements, solicitations, or bulk communications, or distributing chain mail or harmful computer code, viruses, or malware; or
- Using the Services in any way that could, in Motivve Studios sole judgment, interfere with any other party’s use or enjoyment of the Services, or in a manner that could overburden, impair, damage, or disable our networks or servers, or expose us or our licensors, users, customers, or suppliers to any claims or liability.
- Attempting to carry out or assisting anyone in any of the foregoing.
You agree that we may take any measures we deem appropriate, in our sole discretion, to prevent the violation of, and to enforce, these Terms of Service. Without limiting any other rights we have, you agree that we may take any actions permitted or required by law (including the suspension or termination of your Account or your access to the Services) if we believe, in our sole discretion, that you are engaging in activities that (i) violate these provisions (or other terms in these Terms of Service), (ii) could expose us and/or our vendors and Motivve Studios Partners to liability, or (iii) could harm our business reputation or that of our vendors and Motivve Studios Partners.
Ownership and Intellectual Property
The Services and the content in the Services, including all text, graphics, animation, logos, button icons, images, audio clips, software, trademarks, copyrighted information, proprietary methods or technology, patents, or any other material displayed on or contained within our website and applications (collectively, the “Content”), and the collection, arrangement, and assembly of the Content, is the property of Motivve Studios or is licensed for use by Motivve Studios. You do not have, nor does your use of the website give you any ownership interest in the Services or the Content. The Services and Content are subject to and must be used in accordance with applicable intellectual property laws, including the protections of trademark, patent, or copyright requirements.
You may not, and you agree you will not, modify, copy, reproduce, prepare derivative works from, license, sell, rent, transfer, translate, redistribute, transmit, republish, reverse engineer, decompile, or disassemble, any of the Services or Content in any way without the express and prior written consent of Motivve Studios.
Copyright and trademarks in the Content are reserved to Motivve Studios and/or the copyright owners (licensors). Prior permission to use, copy, reproduce or reprint any copyrighted material must be obtained from the copyright or trademark owner, regardless of intended use. You must contact Motivve Studios with requests to obtain permission to use, copy, reproduce, or reprint copyrighted Content. You must further abide by all copyright notices, information or restrictions contained or provided in the Services or Content.
Motivve Studios respects the intellectual property of others. If you believe that your work has been copied in a way that violates your rights, please provide us with the information necessary to evaluate your claim and respond appropriately.
Ownership of and Our Rights to Your Materials and Feedback
Motivve Studios may make available to you the ability to post, submit, email, or otherwise make available on or through the Services (including via email to us) information, text, or materials (“Your Materials”). You are entirely responsible for Your Materials, and you represent and warrant that Your Materials do not include confidential or proprietary information, or violate any other party’s intellectual property, privacy, or other rights. Subject to the license grant below, as between you and us, you retain ownership and any intellectual property rights in any materials that are contained in Your Materials. You grant us an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, transferrable, sublicensable, worldwide license to use, reproduce, modify, transmit, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise exploit, Your Materials in any form, technology, or media now known or hereafter developed. You hereby waive any moral rights you may have in Your Materials under the laws of any jurisdiction. You agree we may exercise any of these rights without compensation or attribution to you.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements, or other feedback related to the Services (collectively “Feedback”), you represent and warrant: (i) that you have the right to disclose the Feedback; (ii) that the Feedback does not violate the rights of any person or entity; and (iii) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further: (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback; (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development; (iii) grant us (and any of our vendors to the extent you provide Feedback to them) an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback; and (iv) irrevocably waive, and cause to be waived, against Motivve Studios, its vendors and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your account or the Services. This section applies whether you provide the Feedback through the Services or through any other method of communication.
Subject to your compliance with the terms and conditions of these Terms of Service, Motivve Studios grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view and print any Content solely for your personal use and non-commercial purposes. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Motivve Studios or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
Warranties and Representations
We try to keep the Services bug free and safe, but you use them at your own risk. We provide the Services “as is,” “with all faults,” and “as available.” We and our suppliers make no express or implied warranties or guarantees about the Services. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY OR GUARANTEE THAT THE SERVICES, OR ANY INFORMATION CONTAINED IN THE SERVICES, IS ACCURATE OR UP-TO-DATE, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, OR MEET YOUR REQUIREMENTS, OR THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES, AND ANY SERVICE, MATERIAL, OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES, OR USE OF RESOURCES OR PARTICIPATION IN ANY PROGRAMS OR ACTIVITIES ACCESSIBLE THROUGH OR IN CONNECTION WITH THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTERS OR MOBILE DEVICES AND ANY LOSS OF DATA THAT RESULTS THEREFROM. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY US SHALL CREATE A WARRANTY NOT EXPRESSLY SET FORTH HEREIN.
Limitations on Liability
YOU AGREE THAT THE MOTIVVE STUDIOS RELEASED PARTIES’ (AS DEFINED BELOW) ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO YOUR USE OF THE SERVICES, AND/OR FOR ANY BREACH OF THESE TERMS OF SERVICE, IS SOLELY LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES, IF ANY, THAT YOU PAID TO US WITHIN THE LAST 12 MONTHS FOR THE SPECIFIC SERVICE AT ISSUE. THIS MEANS THAT MOTIVVE STUDIOS HAS NO LIABILITY TO YOU WHERE IT PROVIDES YOU WITH SERVICES FREE OF CHARGE TO YOU. YOU AGREE THAT THE MOTIVVE STUDIOS RELEASED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR RELIANCE ON, THE SERVICES, OR INFORMATION CONTAINED ON OR THROUGH THE SERVICES, OR YOUR INABILITY TO USE THE SERVICES, ANY TERMINATION OF YOUR ACCESS TO OR DISCONTINUANCE OF THE SERVICES, OR ANY BREACH OF THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, AND LOSS OF GOODWILL, EVEN IF ANY OF THE MOTIVVE STUDIOS RELEASED PARTIES KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ANY OF THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE FOUND TO BE UNENFORCEABLE, THE MOTIVVE STUDIOS RELEASED PARTIES’ LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE “MOTIVVE STUDIOS RELEASED PARTIES” MEANS MOTIVVE STUDIOS AND OUR PARENTS, AFFILIATES, SUBSIDIARIES, EMPLOYEES, CONTRACTORS, MEMBERS, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, PREDECESSORS IN INTEREST, SUCCESSORS IN INTEREST, MOTIVVE STUDIOS PARTNERS, CLIENTS, CUSTOMERS, AND VENDORS.
THE FOREGOING LIMITATION OF LIABILITY IS NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, THE RELEASED PARTIES ARE NOT LIABLE FOR ANY DAMAGES UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS; AND THE RELEASED PARTIES ARE NOT, IN ANY CASE, LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
Agreement to Arbitrate
You and Motivve Studios agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
We agree that each party may only resolve disputes with the other party on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. We agree that class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
YOU ACKNOWLEDGE AND AGREE THAT YOU AND MOTIVVE STUDIOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND MOTIVVE STUDIOS OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. IF THIS SPECIFIC PARAGRAPH IS HELD UNENFORCEABLE, THEN THE ENTIRETY OF THIS “DISPUTE RESOLUTION” SECTION WILL BE DEEMED VOID. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THIS “DISPUTE RESOLUTION” SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS.
Arbitration Rules and Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Ohio and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Motivve Studios otherwise agree, the arbitration will be conducted in Cleveland, Ohio or the state in which you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Motivve Studios submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Motivve Studios will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Motivve Studios will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modifications to These Terms of Service or the Services” section below, if Motivve Studios changes this Agreement to Arbitrate section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email to: email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of the Motivve Studios email and/or communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Motivve Studios in accordance with the provisions of this Agreement to Arbitrate section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Mobile Application Users
The following terms apply to your access to or use of any Motivve Studios mobile application, if available, (together with all information and software associated therewith, the “Application” or “Applications”) through any device, such as tablets, mobile phones, etc.
Rights Granted to You
We grant you a limited, non-exclusive, revocable, non-transferable license to download, install, and use the Applications solely for your personal, non-commercial use on a mobile or tablet device owned or controlled by you and only in accordance with the Terms of Service. Other than the limited rights granted in the immediately preceding sentence, no other rights are granted to you. This is only a license, and not a sale of, the Applications to you.
Your Responsibilities as the Application User
Use of the Application requires third-party services and equipment such as a compatible mobile device, Internet access, and a telecommunications carrier. Obtaining and maintaining the equipment and services necessary to use the Application is your responsibility. We are not responsible for equipment defects, lack of service, dropped calls, data speed or availability, or other issues arising from third-party services or equipment. You are solely responsible for your use of those services on your mobile device and compliance with any applicable third-party terms and payment of all applicable third-party fees associated with any carrier service plan you use in connection with your use of those services (such as voice, data, text, SMS, MMS, roaming or other applicable fees charged by the carrier). You are also responsible for maintaining the confidentiality of your User ID used to access the Applications. If you choose to use a Third-Party Linked Account and/or persistent log-in with your Account, you should lock your mobile device when not in use to avoid any breach of the security of your information and/or misuse of your identification, password or the Applications.
Additional Restrictions and Notices
You agree you will not remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Applications. You acknowledge that Motivve Studios may issue an upgraded version of its mobile applications and may automatically upgrade the mobile application that you are using. You consent to such automatic upgrading and agree that the then-current Terms of Service shall govern all such upgrades. Motivve Studios mobile applications or other aspects of the Services may include third-party code and other software, which is governed by the applicable open source or third-party end user license agreement, if any, that authorizes the use of such code.
You agree to comply with all applicable terms, conditions, and agreements between you and any third party that provides products or services that facilitate or enable your use of any mobile applications, and you acknowledge and agree that your use of any Application may result in charges to you by those third parties in connection with the products and services they provide to you (such as data plan and roaming charges), and you will be solely responsible for any such charges.
Apple iOS App
If the Services that you use include a mobile application that you download, access and/or use and that runs on Apple’s iOS operating system (an “iOS App”), you acknowledge and agree that:
- the iOS App may only be accessed and used on a device owned or controlled by you and using Apple’s iOS operating system;
- these Terms of Service are between you and Motivve Studios, and not with Apple;
- Apple has no obligation at all to provide any support or maintenance services in relation to the iOS App, and if you have any maintenance or support questions in relation to the iOS App, please contact Motivve Studios, not Apple;
- except as otherwise expressly set forth in these Terms of Service, any claims relating to the possession or use of the iOS App are between you and Motivve Studios (and not between you, or anyone else, and Apple);
- in the event of any claim by a third party that your possession or use (in accordance with these Terms of Service) of the iOS App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and
- although these Terms of Service are entered into between you and Motivve Studios (and not Apple), Apple, is a third-party beneficiary under these Terms of Service, will have the right to enforce these terms against you.
In addition, you represent and warrant that:
- you are not, and will not be, located in any country that is the subject of a United States Government embargo or that has been designated by the United States Government as a “terrorist supporting” country;
- you are not listed on any United States Government list of prohibited or restricted parties; and
- if the iOS App does not conform to any warranty applying to it, you may notify Apple, which will then refund the purchase price of the iOS App (if any) to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition or other term in relation to the iOS App and will not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the iOS App or as a result of you or anyone else using the iOS App or relying on any of its content.
If the Services that you use include a mobile application that you download, access, and/or use from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms of Service are between you and Motivve Studios only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Motivve Studios, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Terms of Service; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Terms of Service as it relates to Motivve Studios Google-Sourced Software.
Tools & Resources
You may have access to Services that allow you to engage in health-related activities, such as, for example, participating in various missions, tracking your progress toward achieving various goals and toward accomplishing various missions, accessing various resources, tools, applications, or programs that may be available to you, reviewing articles and other health-related content, and accessing certain health information and/or records (collectively, the “Tools & Resources”) as a way to improve your overall health while enabling our Motivve Studios Partners to better understand your health needs. These terms apply to your use of the Tools & Resources. The rewards and incentives, if offered through the Tools & Resources are also subject to our Reward Terms and Conditions, which are incorporated by reference into these Terms of Service.
We may offer in-game health surveys that ask for simple information about your personal medical history and health. We collect your responses to enable our Motivve Studios Partners to better manage and understand your health needs. The surveys are considered complete when you answer all of the survey questions that we ask. Please do NOT provide your genetic information in your survey responses.
You may have the opportunity to participate in various missions and health-based activities, and, if offered, to earn “rewards” for completing certain missions or health-based activities. If you think you might be unable to complete a mission and/or health-based activity on the Services, you might qualify for an opportunity to earn the same “rewards” offered by the missions and health-based activities by different means. If so, please email firstname.lastname@example.org for instructions. Recommendations from your personal physician may be accommodated if necessary.
Earning Virtual Currency
While utilizing our Services and if offered, you may have the opportunity to participate and engage in various missions, challenges, or other health-based activities that can earn a specified number of virtual currencies and goods such as tickets and/or coins (“Virtual Currency”) for achieving certain goals, completing certain missions and/or challenges, answering trivia questions, or for participation in our Services. You may have the option of using your Virtual Currency in a variety of ways while utilizing our Services, that include chances to win products, services, and/or other benefits by participating in our Rewards Program if offered. The Rewards Program and any incentive, prize, promotion, and/or benefit are subject to our Reward Rules, which are incorporated by reference into these Terms of Service.
Virtual Currency has no cash value, are non-negotiable, and cannot be redeemed either in whole or in part for cash. There is no cash surrender value for unused Virtual Currency, and Users have no property rights or other legal interests in Virtual Currency. Virtual Currency accrued by a User of our Services are for the User's benefit only and may not be transferred to another person for any reason, including divorce or inheritance, except as expressly provided below. Virtual Currency may not be combined with or transferred to any other type of Virtual Currency offering or award. Virtual Currency may not be pooled or combined with any other User’s Virtual Currency. Virtual Currency may not be brokered, bartered, attached, pledged, gifted, sold or otherwise transferred for consideration. Any receipt or use of Virtual Currency in violation of these terms and/or the Rewards Terms and Conditions will void them completely.
You agree to defend, indemnify, and hold harmless the Motivve Studios Released Parties from all third party claims, liabilities, losses, damages, and expenses, including but not limited to, reasonable legal and attorneys’ fees, that, in each instance, arise out of, or are related to: (i) your use or misuse of the Services, (ii) Content, (iii) Your Materials, and/or (iii) your violation of these Terms of Service. Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold the Motivve Studios Released Parties harmless from and against any third party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms of Service.
You agree we have the right to hire counsel of our own choosing in connection with, and to assume the exclusive defense and control of, any matter subject to indemnification by you, and doing so will in no way limit your indemnification obligations hereunder. In any such litigation, you will cooperate with us in asserting any available defenses.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Time Limit for Bringing Claims
YOU AGREE THAT REGARDLESS OF ANY LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OF SERVICE, THE SERVICES, OR YOUR RELATIONSHIP WITH US MUST BE FILED WITHIN ONE (1) YEAR OR SUCH CLAIM SHALL BE FOREVER BARRED. THAT ONE-YEAR STATUTE OF LIMITATIONS SHALL BEGIN TO RUN ON THE DATE PROVIDED UNDER APPLICABLE LAW.
Notwithstanding the foregoing, the above statute of limitations shall not apply to residents of New Jersey.
Controlling Law and Jurisdiction
These Terms of Service and any action related thereto will be governed by the laws of the State of Ohio without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of Ohio and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Notices and Agreement to Be Bound by Electronic Signature
Your affirmative act of using the Services, or creating an Account to become a Registered User, constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. To view and retain a copy of this disclosure or any information regarding your agreement to these policies, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device.
You also agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications, or other records regarding the Services (collectively, “Notices”). You agree that we can send you Notices (i) to the email address that you provided to us during registration, (ii) to any email account you open with a Service, or (iii) by posting the Notice on the Services. Our delivery of any Notice is effective when sent, regardless of whether you read the Notice, when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by notifying us in writing via email to email@example.com or as otherwise expressly provided by us in writing.
Modifications to These Terms of Service or the Services
Motivve Studios reserves the right, at its sole discretion, to modify these Terms of Service. We may also upgrade, enhance, change, terminate, and modify the Services, including by discontinuing a Service or any aspect or feature thereof (collectively, “Modifications”). If we make any material changes to the Terms of Service, we will attempt to notify you by email (sent to the email address specified in your account) or by means of a notice on the Services prior to the change becoming effective, which you agree is sufficient to bind you to any such Modification. In any event, changes to these Terms of Service will be reflected in an updated version that will be posted on the Services, and all changes will be effective upon such posting. You agree to regularly review these Terms of Service so that you will be apprised of all changes. You can determine when these Terms of Service were last revised by referring to the “Last Updated” legend. If you disagree with the Modifications, you should cancel your Motivve Studios account by providing written notice to us and discontinue any use of the Services immediately. By continuing to use the Services after any notice or posting of the Modifications, you are agreeing to be bound by the Modifications
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Motivve Studios prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Motivve Studios may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Termination of Your Rights
Motivve Studios reserves the right, at its sole discretion, to cancel, suspend, or block your use of the Services (or an affiliate of the Services) and/or registration at any time, without cause and/or without notice. You may cancel your Account at any time, but you will not receive a refund of any fees paid to Motivve Studios. Your right to use the Services will end once your Account is cancelled or your access to the Services is terminated for any reason, and any data you have stored within our Services may be unavailable to you after that.
You should transfer any medical records or other information stored on or through the Services prior to terminating your Account. We are not responsible or liable for any records or information that are made unavailable to you as a result of a termination of your Account or your use of our Services, by you or us, except where we are required by law to make those records available to you. Any limitations on liability, our disclaimer of warranties, our proprietary rights in and to Your Materials, Content, Motivve Studios Property, and the Services, as well as all of your representations, warranties, and obligations to indemnify us, will survive the expiration or termination of your account or these Terms of Service for any reason.
You agree that the termination of any agreement we have with any Motivve Studios Partners (e.g., if you are using some of our services through a relationship we have with your health plan, and that agreement between us and your health plan is terminated) will not affect any of our rights under these Terms of Service (except as provided otherwise by law).
These Terms of Service, and any supplemental terms, policies, rules, and guidelines posted on the Services, constitute the entire and exclusive understanding and agreement between Motivve Studios and you regarding the Services and Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Motivve Studios and you regarding the Services and Content.