This Mobile Application End User License Agreement ("Agreement
") is a binding agreement between you ("End User
" or "you
") and TOTALFIT, Inc. ("TOTALFIT
"). This Agreement governs your use of the TOTALFIT Application on the Apple iOS® and the Google Andriod® operating systems, (including all related documentation, the "Application
"). The Application is licensed, not sold, to you.
BY DOWNLOADING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; 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 THE APPLICATION. 1. License Grant
Subject to the terms of this Agreement, TOTALFIT grants you a limited, non-exclusive and nontransferable license to:
2. License Restrictions
- download, install and use the Application for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (your "Mobile Device") strictly in accordance with the Application's documentation; and
- access, stream, download and use on such Mobile Device the content and features made available in or otherwise accessible through the Application, strictly in accordance with this Agreement.
You may not:
3. Location Services
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
Certain location-based functionality made available in the Application is provided by Apple Inc., Google Inc., and/or other third-party providers. Your use of this functionality may be subject to additional terms and conditions from the applicable providers that may be updated from time to time, including https://www.apple.com/legal/internet-services/maps/terms-en.html
for Apple iOS® devices and http://www.google.com/intl/en-US_US/help/terms_maps.html
for Google Android® based devices. You must exercise your own judgment as to the adequacy and appropriateness of the information. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE. THE LOCATION SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND AND TOTALFIT EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO THE LOCATION SERVICES. 4. Fingerprint and Facial Recognition Based Unlocking
The Application may require that you provide a username and password (or PIN) to access and use some of its functionality or may provide you with alternative methods to access the Application, including:
- Touch ID and Fingerprint Unlocking. Touch ID and Fingerprint unlocking are optional fingerprint-based sign-in methods for the Application. Touch ID is available on many Apple iOS® mobile devices that have a fingerprint sensor and Fingerprint Unlocking is available on most Google Android® based mobile devices that have a fingerprint sensor, regardless of manufacturer. To use one of these authentication methods, you will need to have configured your Mobile Device to have saved your fingerprints. Fingerprints are stored only on your Mobile Device and TOTALFIT does not have access to your fingerprint information. You acknowledge that by enabling one of these authentication methods, you will allow anybody who has a fingerprint stored on your Mobile Device to have access to all of your information available through the Application. TOTALFIT reserves the right to suspend or disable either or both of these features at any time. These features can only be associated with one user of the Application on the Mobile Device at a time. In the event your Mobile Device does not recognize your fingerprint you can still sign in using your user name and password. To use these features on multiple Mobile Devices, you will need to set it up on each applicable Mobile Device.
- Face ID and Facial Recognition Unlock. Face ID and facial recognition unlocking are optional facial recognition sign-in methods for the Application. Face ID is currently available for Apple iOS® mobile devices with special front-facing camera to provide facial recognition features. Facial recognition unlocking is available on some Google Android® based mobile devices with facial recognition features that include a front-facing camera, however, different Android-based mobile device manufacturers may incorporate different facial recognition technologies into their mobile devices, and the security and reliability of facial recognition unlocking on such devices may vary greatly (for example, some of the technologies included by Android-based mobile device manufacturers include identifying patterns in the irises of your eyes, while some others may utilize technology that is less sophisticated). To use Face ID on your Apple Mobile Device or facial recognition unlocking on your Android-based Mobile Devices you will need to have configured your Mobile Device to have saved a special image of your face that is appropriate for your Mobile Device. These special facial images are stored only on your Mobile Device and TOTALFIT does not have access to your facial image information used for these technologies (TOTALFIT may have access to other images of you if you choose to provide them in the Application). You acknowledge that by enabling this technology in your Mobile Device, you will allow anybody who has their special facial image stored on your Mobile Device to have access to all information available through the Application. TOTALFIT reserves the right to suspend or disable these features at any time. These features can only be associated with one user of the Application on your Mobile Device at a time. In the event your Mobile Device does not recognize your face you can still sign in using your user name and password. To use these features on multiple Mobile Devices, you will need to set it up on each applicable Mobile Device.
5. Push Notifications
You may permit the Application to send you push notifications. Push notifications may include alerts, sounds, and icon badges. Push notifications can be configured in the settings for your device. Your personal information may be used to provide you with push notifications. All information collected or used in connection with push notifications are subject to our Privacy Notice https://totalfit.app/privacy-policy
Please refer to the user guide for your mobile device for more information on how to configure or disable these push notifications. 6. Modified Devices and Operating Systems
The Application stores and processes personal data that you have provided in it or that you have provided to TOTALFIT in order to provide you with the access and use of the Application. It is your responsibility to keep your Mobile Device and access to the Application secure. We therefore recommend that you do not jailbreak or root your Mobile Device, which is the process of removing software restrictions and limitations imposed by the official operating system of your Mobile Device provided by its manufacturer, including by modifying the operating system or otherwise causing your Mobile Device to not be in conformance with the manufacturer's original specifications (each such device, a "Modified Device
"). These activities can make your Mobile Device vulnerable to malware, viruses, and other malicious programs, compromise your Mobile Device's security features, and it could result in the Application not working properly or at all. TOTALFIT, its affiliates, and their respective licensors have no liability for errors, unreliable operation, or other issues resulting from the use of the Application on or in connection with Modified Devices. The use of the Application on a Modified Device is at your sole and exclusive risk and liability. 7. Reservation of Rights
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. TOTALFIT and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. Apple, Touch ID, and Face ID are registered trademarks of Apple Inc. Android is the registered trademark of Google LLC.8. Agreement for Paid Services
The free part of the Service is limited to Content previews or trial Content as the case may be, that are made available for showcasing purposes.
You receive access to additional Content for different, and variable periods of time by purchasing a paid Subscription (recurring payment, the "Subscription") or a paid Content Package (one-time payment, the "Content Package").
If you purchase a Subscription or Content Package through the App, a Purchase Agreement (the "Purchase Agreement") will result when you click the "Double Click to Confirm", button or a comparable button (such as but not limited to "Double Click to Pay", "Buy Now") during the order process, and when you have entered your password for the app store or used a comparable method of authentication (such as Face ID or Touch ID ), if required. We do not ask you for any further billing or payment details because you make the purchase through your app store provider. Please contact them if you would like to correct any input errors e.g. regarding your payment details.
If you purchase a Subscription or Content Package on the Website, a Purchase Agreement will result when you click on the "Buy now" button or a comparable button (such as but not limited to "Buy", "Confirm", "Order with obligation to pay") and you have successfully entered your payment information. Prior to this, you can interrupt the process at any time and correct any input errors.
Our Subscriptions provide you with access to certain specified Content and run for varying minimum contract terms as stated in the plan you selected. Subscriptions are automatically renewed for the same minimum term that has been selected until you or We cancel them.9. Withdrawal Right
In some countries you are entitled to a legal withdrawal right when executing a distance selling agreement, so in this case when entering into a Purchase Agreement for Subscription or a Content Package with Mighty, about which We inform you below, as per the requirement of the statutory model. This right of withdrawal applies for example for all member states of the European Union but not to the United States. If you are unsure whether you have such a right of withdrawal you may refer to the terms of service of your app store. If you are entitled to a legal right of withdrawal, please read the following information about how you can exercise this right and what the consequences of a cancellation are.
Please note that in the case of a purchase made via your app store, you can exercise the right to withdraw with the respective operator of the app store, i.e., Apple or Google. In the case of a purchase made directly with Us (e.g. via the Website), you can exercise the right to withdraw with Us. Please note the cancelation policy below. A model withdrawal form can be found in Section 9 (2).
- BEGIN OF CANCELLATION POLICY -
You have the right to withdraw from this agreement within fourteen days without providing any reasons. The withdrawal period is fourteen days from the date the agreement was executed.
To exercise your right of withdrawal, you must clearly notify Us (e.g., in a mailed letter, or email) that you wish to cancel the agreement. You can use the attached model withdrawal form, which, however, is not required. A clear notice in any form will be sufficient. In order to maintain the cancellation period, all you have to do is send the notification of the right to withdrawal before the expiration of the withdrawal period to the following address:
9070 Gleannloch Forrest Drive, Suite 100,
Spring, Texas 77379, USA
If you cancel a Purchase Agreement, the respective contract between you and Us will be unwound. We will refund all payments We received from you within fourteen days from the date We receive the notification of your cancellation of the Purchase Agreement. For this refund We use the same payment method that you used in the original transaction, unless expressly agreed otherwise with you; you will not be charged any fees associated with this refund.
- END OF CANCELLATION POLICY –
To exercise the right to withdraw, you can fill out the following form and send it back to the address below.
Sample Cancellation Form
I hereby revoke the contract for the following purchase made by me.
Name of product: _________________
Date of purchase: __________________
My name: ________________________
My address: ______________________
My email address: _________________
* only if sent on paper
9070 Gleannloch Forrest Drive, Suite 100,
Spring, Texas 77379, USA
Email: email@example.com 10. Collection and use your information
You acknowledge that when you download, install or use the Application, TOTALFIT may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others, either through the Application or on social media. All information we collect through or in connection with this Application is subject to our Privacy Notice https://totalfit.app/privacy-policy
By downloading, installing, using and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Notice. 11. Updates
TOTALFIT may from time to time in its sole discretion develop and provide Application 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 TOTALFIT 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 Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You must promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not operate properly should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement. 12. Third Party Materials
The Application 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 TOTALFIT is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. TOTALFIT 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. 13. Term and Termination
The term of Agreement commences when you download the Application and will continue in effect until terminated by you or TOTALFIT as set forth in this Section 11.
You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
TOTALFIT may terminate this Agreement at any time without notice if it ceases to support the Application, which TOTALFIT may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
Termination will not limit any of TOTALFIT's rights or remedies at law or in equity. 14. Disclaimer of Warranties
THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TOTALFIT, 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, TOTALFIT 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.
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. 15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOTALFIT 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 ACCESS ITS CONTENT OR FEATURES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
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 TOTALFIT 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. 16. Indemnification
You agree to indemnify, defend and hold harmless TOTALFIT and its officers, directors, employees, agents, affiliates, 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 Application or your breach of this Agreement. Furthermore, you agree that TOTALFIT, Inc. assumes no responsibility for the content you submit or make available through this Application.
17. Export Regulation
The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US. 18. Severability
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. 19. Governing Law
This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in Houston and Harris County, although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 20. 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. 21. Entire Agreement
This Agreement and our Privacy Notice constitute the entire agreement between you and TOTALFIT with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
22. Waiver and Severability
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 held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement will continue in full force and effect. 23. Your Comments and Concerns
This Application is provided by TOTALFIT, Inc.; 9070 Gleannloch Forest Drive; Spring, TX 77379
You may provide us with suggestions, comments, or other feedback (collectively "Feedback
") regarding TOTALFIT's products and services, including the Application. Feedback is entirely voluntarily. TOTALFIT may use Feedback with any purpose without obligation of any kind. You assign TOTALFIT exclusively and perpetually, all rights, titles, and intersts, including all intellectual property rights, you may have in the Feedback. Any such Feedback, requests for technical support, and other communications relating to the Agreement should be directed to support@TOTALFIT.app