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Last Modified: December 15, 2025
CUSTOMER TERMS AND CONDITIONS
These Customer Terms and Conditions (these “Terms”) are between Nivati, Inc. (“Nivati”) and the party accepting these Terms (“Customer,” “you,” or “your”). These Terms are effective as of the date Customer accepts them (the “Effective Date”).
CUSTOMER ACCEPTS THESE TERMS BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) ENTERING INTO AN ORDER OR OTHER DOCUMENT THAT REFERENCES OR INCORPORATES THESE TERMS; (3) PAYING AN INVOICE THAT REFERENCES THE PRODUCTS AND SERVICES; OR (4) ACCESSING OR USING THE PRODUCTS AND SERVICES.
ANY INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND, IN SUCH CASE, ALL REFERENCES TO “CUSTOMER,” “YOU,” OR “YOUR” IN THIS AGREEMENT WILL BE REFERENCES TO SUCH THIRD PARTY. CUSTOMER’S ACCESS TO AND USE OF THE PRODUCTS AND SERVICES, AND NIVATI’S PROVISION OF THE PRODUCTS AND SERVICES, ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS.
For purposes of these Terms, “Products and Services” means Nivati’s web-based platform, mobile application, websites, tools, and related online functionality (collectively, the “Platform”), together with the professional, wellness, work-life, and related services that Nivati or its approved affiliates or vendors provide or make available through the Platform.
DO NOT DISREGARD OR DELAY SEEKING MEDICAL ADVICE BECAUSE OF CONTENT YOU HAVE READ ON THIS WEBSITE OR NIVATI PLATFORM. THIS NIVATI TOOL, INCLUDING ANY OF ITS RELATED COMPONENTS, SUCH AS OUR WEB AND MOBILE APPLICATION(S), PLATFORM, ASSESSMENTS, OR ANY OTHER PARTS MADE AVAILABLE BY US (COLLECTIVELY, THE “TOOL”), DOES NOT CONTAIN MEDICAL ADVICE, IS NOT INTENDED FOR MEDICAL DIAGNOSTIC PURPOSES, AND WE DO NOT MONITOR THIS TOOL OR COMMUNICATIONS FROM THIS TOOL FOR MEDICAL DIAGNOSTIC OR EMERGENCY HEALTH CARE PURPOSES.
“Order” means an ordering document, online purchase flow, or other mutually agreed instrument that references these Terms. Each Order is subject to, and governed by, these Terms.
Certain Products or Services may require you to agree to additional terms, conditions, or policies. Any such additional terms are incorporated into these Terms, and if they conflict with these Terms, the additional terms will control with respect to the applicable Product or Service.
Use of the Products and Services is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Products and Services and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.
Nivati reserves the right to change or update these Terms , or any other of our policies or practices, at any time. If a change to these Terms materially modifies your rights or obligations, we may notify you and require that you accept the modified Terms in order to continue to use the Products or Services. We may notify you of such changes via pop-up or push notifications within the Products or via email. If you continue to use the Products or Services after modification, you agree to abide by the modified Terms.
To access and use the Products and Services, Customer’s employees and other personnel who are authorized by Customer to access the Products and Services (collectively, “Users”) must: (a) create an account and provide the information and consents required by Nivati to access and use the Products and Services; and (b) agree to Nivati’s End User Terms and acknowledge Nivati’s Privacy Policy, each of which may be updated by Nivati from time to time. Customer acknowledges that any User who does not agree to the End User Terms or acknowledge the Privacy Policy will not be permitted to access or use the Products and Services.
Customer is responsible for ensuring that its Users maintain the confidentiality of their account credentials and for all activities that occur under User accounts provisioned through Customer’s subscription. User accounts are personal to the individual User and may not be shared, transferred, or used by more than one individual.
Customer is responsible for Users’ acts and omissions in connection with their access to and use of the Products and Services to the extent such acts or omissions would constitute a breach of these Terms if performed by Customer. For clarity, each User’s individual obligations under the End User Terms are between the User and Nivati.
Our Products and Services are intended for individuals who are at least 18 years of age. Nivati strictly prohibits any individual under the age of 18 from accessing or using any Products or Services.
Automatically Renewing Subscriptions. You may purchase access to the Products and Services for yourself and your Users via a subscription fee-based program (“Subscription”). Subscriptions will be annual or multiyear options (“Subscription Term”). For the purposes of our annual subscriptions, a year constitutes 365 calendar days. Subscriptions may be charged separately for Products and Services. If you activate a Subscription, you authorize Nivati to periodically charge, on a going-forward basis all accrued sums (“Subscription Fee”) on or before the payment due date for the accrued sums. Your account will be charged per the mutually agreed terms within the applicable Statement of Work (“SOW”). The Subscription will continue, through a standard renewal process, unless and until you correctly cancel your Subscription as laid out herein, or Nivati terminates your Subscription or your account. You are responsible for the payment of the entire subscription value for the initial contract.
Your subscription plan and associated fees remain fixed during the term of your subscription, and do not vary based on usage, number of users, performance outcomes, or utilization rates.
Credit Purchases. As applicable, you can purchase credits to be utilized by you or your employees across certain of Nivati’s services. These credits don't roll over to a renewal contract and they expire at the end of each contract term. Further, there are no refunds for any unused credits and credits will not be returned or re-credited if a therapy session is missed or ends earlier than the full scheduled time.
Subscription Cancellation. You may elect to not renew your Subscription by providing at least 60-days’ written notice to Nivati prior to the end of the then-current Subscription Term. See more about cancellation at Section 10.
No Refunds on Subscriptions. Refunds cannot be claimed for any partial Subscription Term. Nivati will bill the Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information) (“Payment Method”). You will only have access to the Products and Services while your Subscription is active and subsisting.
Subscription Methods. You may subscribe via: (i) purchasing a subscription to the Products or Services from the Website, within the App, where allowed by the App marketplace partners, or (ii) a Benefit Sponsor (as defined in Section 2.5).If your Subscription is through a Benefit Sponsor, additional terms and policies may apply, and your Subscription may be paid for, partially paid for, or managed by the Benefit Sponsor or the bundle subscription partner.
Discounts. Nivati may offer certain special discount pricing options (the “Special Discount Pricing Options”). Such Special Discount Pricing Options will only be available to qualified customers (the “Qualified Customers”). Nivati reserves the right to determine if you are a Qualified Customer in our sole discretion. Additional terms may apply to such Special Discount Pricing Options. Any discount on Fees offered to the Customer shall only apply to the first year of the subscription. Nivati does not guarantee the same pricing or fee terms there after. Any future discount must be renegotiated annually before Renewal.
Prices in US Dollars include local taxes. Prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on your account. If payment is not received by us from the Payment Method you provided, you agree to pay all amounts due upon demand by us.
Certain ancillary services, including but not limited to training sessions, workshops, single sign-on (SSO) integration, HRIS integration, onsite crisis support, and Nivati attendance at in-person events, may be subject to additional fees. These services may or may not be included as part of purchased Credits, as applicable.
Your use of the Products and Services may require you to pay fees. We reserve the right to determine pricing for the Products and Services. The fees you owe may vary based on many factors, including but not limited to Customer’s agreement with Nivati, or where applicable, any agreement between Nivati and Customer’s employer, healthcare provider, health plan or other Benefit Sponsor’s, or the coverage offered by your applicable health insurance provider. We are not responsible for whether your health insurance offers any amount of coverage for the Products and Services.
If any payment due under these Terms is not received by the due date, a late fee of 1.5% per month (or the maximum rate permitted by applicable law, whichever is lower) will be applied to the outstanding balance. The late fee will accrue from the original due date until the outstanding amount is paid in full. Failure to remit payment, including any accrued late fees, may result in suspension or termination of Services.
You are responsible for all applicable fees and charges incurred, including applicable taxes, unless otherwise stated in your Benefit Sponsor terms and conditions or otherwise agreed to in writing between the parties. Before you pay any fees, you will have the opportunity to review and accept the fees that you will be charged. In order to access the Products and Services, you may be required to provide your payment information. You agree to promptly notify Nivati of any changes to your Payment Method while any payments remain outstanding. You authorize Nivati or a third-party payment processor to charge all fees for the Products and Services, including all applicable taxes, to the Payment Method. If you pay any fees with a credit card, we (or a third-party payment processor) may seek pre-authorization of your credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit to cover your purchase. For all purchases or fees made with a credit card, a 3% surcharge will be added automatically.
Many groups, including but not limited to employers, healthcare providers, health plans, universities, government entities, municipalities or hospitals (“Benefit Sponsor” or “Benefit Sponsors”) purchase and introduce the Products and Services to their employees, eligible dependents and members. In some cases, a Benefit Sponsors may require you to agree to additional terms and conditions, which may include additional terms around subscription redemption, usage or supplementary payment for access to Products and Services. Any such terms are solely between you and the applicable Benefit Sponsor, and Nivati is not a party to, and does not assume any responsibility or liability under, such terms. Nivati does not control and is not responsible for the content or administration of any Benefit Sponsor terms. As between you and Nivati, these Terms govern your access to and use of the Products and Services. In some cases, a Benefit Sponsor may pay for, subsidize, or administer access to the Products and Services on your behalf.
We reserve the right to change our subscription fees, plans or adjust pricing for our Products and Services or any components thereof in any manner and at any time as we may determine in our sole discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to your subscription plan will take effect following notice to you.
We may suspend or terminate your or your Users use of the Products and/or Services as a result of your fraud or breach of any obligation under these Terms, or at any time Nivati deems appropriate. Such termination or suspension may be immediate and without notice. Your and your Users access to the Products or Services may be terminated if the relationship between Nivati and your Benefit Sponsor or provider terminates or expires, or if the Users relationship with the employer or provider ends. If this happens, Nivati will use reasonable efforts to give you seven (7) days’ notice before access to the Products or Services is terminated.
Some features of the Products and Services are subject to certain cancellation fees, as disclosed via the Products and Services. For example, such cancellation fees may be owed as a result of a User missing a scheduled live session with any provider, or failing to provide the required advanced notice, as communicated to you in advance. Customer is responsible for unpaid fees incurred by its Users. We may suspend or terminate access to the Products and Services for any account for which any amount is due but unpaid. In addition to the amount due, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
By using the Products and Services, you shall not, and shall ensure that your Users shall not:
(a) copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, decompile, or disassemble the Products or Services in any way, or create derivative works of the Products or Services;
(b) record the Services, including any coaching, therapy or psychiatry session;
(c) use the Products or Services (or any part of them) to create any tool or software product that can be used to create software applications of any nature whatsoever;
(d) upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Products or Services;
(e) interfere with the servers or networks underlying or connected to the Products and Services or to violate any of the procedures, policies or regulations of networks connected to the Products or Services;
(f) access the Products or Services in an unauthorized manner, including in violation of any local, state, national or international law
(g) circumvent any territorial restrictions applied to the Products or Services;
(h) perform any fraudulent activity including impersonating any other person or entity while using the Products or Services;
(i) conduct yourself in an offensive manner while using the Products or Services (including, but not limited to, bullying, harassing, or using hate speech or degrading comments about things like race, religion, culture, sexual orientation, gender or identity, age, disability, or serious disease);
(j) use the Products or Services for any illegal, immoral or harmful purpose (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes);
(k) use the Products or Services for any purposes related to scientific research, analysis or evaluation of the Products or Services without the express written consent of Nivati;
(l) rent, lease, loan, make available to the public, sell or distribute the Products or Services in whole or in part or use the Products or Services except for your own personal use;
(m) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(n) sell or otherwise transfer access granted under these Terms or any Materials (as defined below) or any right or ability to view, access, or use any Materials; or
Customer is responsible for ensuring that its Users comply with this Section, and any act or omission by a User that would constitute a breach of this Section if performed by Customer will be deemed a breach by Customer.
We reserve the right to immediately terminate your or any User’s access to or use of our Products or Services if we believe, in our sole discretion, that you or any User exhibits such behavior or violates or attempts to violate any laws or breach these Terms.
If you or a User engages in conduct that violates applicable law, we may report such conduct to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing relevant identifying information as required by law. In the event of such a violation, your and your User’s right to use the Products and Services will cease immediately.
We reserve the right to contact emergency services to the extent that we believe, at our sole discretion, that you or a User poses an imminent threat of harm to themselves, to property, or to another person.
Subject to the limitations set forth in these Terms, Nivati grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Products and Services and to permit its authorized Users to access and use the Products and Services solely as contemplated by these Terms and the applicable End User Terms. The Products and Services, and any information derived therefrom, are proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of Nivati and its licensors and suppliers.
All materials (including but not limited to software and content whether downloaded or not) contained in the Products and Services (“Materials”) are owned by Nivati, unless indicated otherwise. The Materials are valuable property and that other than any specific and limited license for use of such Materials, you will not acquire any ownership rights in or to such Materials. The Materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you, without our prior written consent.
The Products and Services are provided for use by Customer and its authorized Users solely as contemplated by these Terms and the applicable End User Terms. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. Materials may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms by Customer or any User may result in suspension or termination of access to the Products and Services and may subject Customer and the applicable User to legal liability. Appropriate legal action may be taken for any illegal or unauthorized use of the Products or Services.
You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Products or Services. If you make other use of the Products or Services, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Nivati will enforce its intellectual property rights to the fullest extent of the law.
Nivati®, the Nivati logo and all other Nivati product or service marks are trademarks of Nivati. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Products and Services are the property of their respective owners. Nothing grants you or any User any license or right to use, alter or remove or copy such material. Your or any User’s misuse of the trademarks displayed or referred to on or in the Products and Services is strictly prohibited. Nivati will enforce its trademark rights to the fullest extent of the law.
Although we aim to offer you the best service possible, we make no promise that the Products and Services will meet your requirements and we cannot guarantee that the Products and Services will be fault free. If a fault occurs in the Products or Services, please report it to us at support@nivati.com and we will review your concern and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Products and Services while we address the fault. We will not be liable to you if the Products and Services are unavailable for a commercially reasonable period of time.
Access by Customer and its Users to the Products and Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new Services or Products. We will restore the Products and Services as soon as we reasonably can.
We may change or discontinue, temporarily or permanently, any feature, component, or content of the Products or Services at any time without notice to you. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by us, without prior notice to you. You agree that Nivati will not be liable to you for any unavailability, modification, suspension or discontinuance of any feature or component of the Products and Services.
At times, we may contract with a third party to support the Products or Services we offer to you or to directly provide Services to you. In such instances, your use of the third party’s products or services will be subject to their applicable terms of service and privacy policy, which will be presented to you upon engagement with their product or service. We reserve the right to change third-party providers at our sole discretion.
We may provide links to other websites or services for you or your Users to access. Any access is at your and the applicable User’s sole discretion and for your information only. We do not review or endorse any of those third-party websites or services. We are not responsible in any way for: (a) the availability of; (b) the privacy practices of; (c) the content, advertising, products, goods or other materials or resources on or available from; or (d) the use to which others make of these other websites or services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
By granting you the right to use the Products or Services, the Nivati Entities (as defined below) do not assume any obligation or liability with respect to your health or your physical activity or condition. In no event will the Nivati Entities be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Products or Services or any activity you undertake in connection therewith. As between you and the Nivati Entities, you are solely responsible for your use of the Products and Services and your health and medical conditions and treatment related thereto. The Nivati Entities will have no liability for any unauthorized disclosure of your personally identifiable information caused by your actions or omissions.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AGREE THAT:
(a) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER. IF YOU ARE HAVING THOUGHTS OF HARMING OR KILLING YOURSELF, PLEASE CALL OR TEXT 988, THE SUICIDE AND CRISIS LIFELINE, AND IF YOU ARE EXPERIENCING A MEDICAL OR MENTAL HEALTH EMERGENCY, PLEASE CONTACT 911 (OR YOUR LOCAL EQUIVALENT) OR GO TO THE NEAREST EMERGENCY ROOM;
(b) NIVATI (WITH THE EXCEPTION OF ITS AFFILIATED MEDICAL PROVIDERS, AS APPLICABLE) IS NOT A LICENSED MEDICAL CARE PROVIDER; DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS; HAS NO EXPERTISE IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; AND IS NOT YOUR HEALTHCARE PROVIDER;
(c) NIVATI IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES AND MAY NOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT;
(d) ANY WRITTEN MATERIAL PROVIDED BY NIVATI AND NOT BY ITS AFFILIATED MEDICAL PROVIDERS THROUGH THE PRODUCTS AND SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER;
(e) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION;
(f) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE PRODUCTS AND SERVICES;
While there is research that meditation can assist in the prevention and recovery process for a wide array of conditions as well as in improving some performance and relationship issues, Nivati makes no guarantees that the Products and Services provide a physical or therapeutic benefit. There have been rare reports where people with certain psychiatric conditions like anxiety and depression have experienced worsening conditions in conjunction with intensive meditation practice. People with existing mental health conditions should speak with their health care providers before starting a meditation practice.
If you access and engage with our mental health coaching service, you will work with mental health coaches who will provide personal support, encouragement and motivation (“Coaches”). The Coaches who provide the mental health coaching services do not provide medical advice, professional clinical counseling or other clinical or psychotherapy services. None of the advice provided by the Coaches, the Services or the Products should be considered medical or clinical advice and none of such information is intended as medical or clinical advice. You should always talk to your physician or other healthcare professionals for diagnosis and treatment, including information regarding which drugs or treatment may be appropriate for you. Do not disregard professional medical advice or delay seeking professional advice because of information you have read on our Services, App or received through a Coach. Do not stop taking any medications without speaking to your physician or other healthcare professional. The information provided in or through our Services, App or the Coaches is not intended to be a substitute for professional medical advice, diagnosis or treatment that can be provided by your doctor or physician, nurse, or any other medical or clinical healthcare professional.
California Residents
The Board of Behavioral Sciences receives and responds to complaints regarding services provided by therapists, clinical social workers, or professional clinical counselors. You may contact the board online at www.bbs.ca.gov, or by calling (916) 574-7830.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
THE PRODUCTS AND SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NIVATI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS AND SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PRODUCTS AND SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Nivati DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES OR ANY PORTION OF THE PRODUCTS AND SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PRODUCTS AND SERVICES, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND NIVATI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PRODUCTS OR SERVICES OR NIVATI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PRODUCTS AND SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE NIVATI ENTITIES OR THE PRODUCTS AND SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT USE OF THE PRODUCTS AND SERVICES BY YOU AND YOUR USERS IS AT YOUR AND THEIR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Nivati’s meditation, mindfulness, sleep and movement content and mental health coaching should not be considered health care, a medical device, or considered medical advice. Only your physician or other health care provider can provide medical advice. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Products and Services.
To the extent that you participate in any movement content featured in the Products or Services, you represent and warrant that you are in adequate physical health to perform such activities and have no disability or condition that would make such movement dangerous. You should consult a licensed physician prior to beginning or modifying any exercise program that you undertake especially if you have a prior injury, a history of heart disease, high blood pressure, other chronic illness, or condition. You acknowledge that Nivati has advised you of the necessity of doing so.
Email, text messaging, push notifications and other electronic communication (“Electronic Communications”), such as posting notices on the Products or Services allow Nivati to exchange information with Customer and Users efficiently in connection with, but not limited to, the provisioning of our Products and Services, product information, appointment reminders, and links to surveys.
Your use of the Products and Services means that you agree and consent to the use of Electronic Communications as an acceptable form of communication for the purposes of receiving our Products and Services and product information.
Customer acknowledges that certain communications relating to the Products and Services may be delivered to Users via electronic means, including email, in-product notifications, or other channels, and that Users’ receipt of SMS/text messages (if any) is governed by the End User Terms and applicable law.
You acknowledge that Electronic Communications may not be a completely secure means of communication, and there may be the potential for such communications to be accessed in storage or during transmission.
Applicable laws require that some of the information or communications we send to you should be in writing. You agree to transact with us electronically, and that communication with us will be mainly electronic. You acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. You have the right to receive a paper copy of the communications.
If you are located outside of the United States, you may have access to all content and services permitted by you, except financial wellness. The purpose of such content and mental health coaching is not the diagnosis, prevention, monitoring, prediction, prognosis, treatment or alleviation of disease. Any additional services, included but not limited to counseling services, are provided by our partners or affiliates and your engagement with such additional services is governed by additional terms and policies which will be presented to you when applicable.
You may not access to the Products or Services or any features thereof from countries or territories where such access is illegal, banned or restricted, including in any sanctioned countries or territories.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN TYPES OF WARRANTIES AND CONDITIONS OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO SOME OF THE DISCLAIMERS IN SECTION 10 OR LIMITATIONS IN SECTION 15.3 MAY NOT APPLY TO YOU.
Nivati may make certain Products and Services available to Customer and its authorized Users on a pilot, trial, evaluation, beta, or other pre-release basis, whether or not provided free of charge (collectively, the “Pilot Services”). This Section 2.5 applies to all Pilot Services and takes precedence over any inconsistent or conflicting terms in these Terms or any Order.
(a) Access Rights.
Subject to these Terms, Nivati grants Customer, during the Pilot Services Period, a revocable, non-exclusive, non-transferable, and non-sublicensable right to access and use the applicable Pilot Services solely for evaluation and non-production purposes, and solely as expressly authorized by Nivati. “Pilot Services Period” means the period beginning when Customer or any User first accesses or uses the applicable Pilot Services and ending on the earliest of: (i) the date specified by Nivati or in the applicable Order for the end of the pilot period; (ii) the start date of any paid subscription or Order for the Products or Services replacing the Pilot Services; or (iii) ten (10) days after either party provides written notice of termination of the Pilot Services. During the Pilot Services Period, Nivati may suspend, modify, or discontinue the Pilot Services at any time in its sole discretion.
(b) No Fees; No Commitment. Unless otherwise expressly set forth in an applicable Order, Pilot Services are provided at no charge. Customer acknowledges that use of Pilot Services does not obligate Customer to purchase any Products or Services.
(c) Disclaimer for Pilot Services.
CUSTOMER ACKNOWLEDGES THAT THE PILOT SERVICES MAY BE INCOMPLETE, MAY NOT INCLUDE ALL FEATURES OR FUNCTIONALITY AVAILABLE IN GENERALLY RELEASED PRODUCTS AND SERVICES, AND MAY CONTAIN BUGS, ERRORS, OR DEFECTS. CUSTOMER’S AND ITS USERS’ USE OF THE PILOT SERVICES IS AT THEIR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, THE PILOT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, AND NIVATI HAS NO SUPPORT, SERVICE LEVEL, WARRANTY, DEFENSE, OR INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE PILOT SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NIVATI’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PILOT SERVICES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). Except as expressly modified by this Section 2.5, all other provisions of these Terms apply to the Pilot Services.
ASSIGNMENT BY US
Nivati may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.
INDEMNITY
To the extent permitted under Applicable Law, Customer agrees to defend, indemnify, and hold harmless Nivati and its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) Customer’s or its Users’ access to or use of the Products and Services; (b) Customer’s or its Users’ violation of these Terms, the End User Terms, or any Applicable Law; (c) Customer’s or its Users’ violation of any third-party right, including any intellectual property, publicity, confidentiality, property, or privacy right; or (d) any claim that Customer’s or its Users’ use of the Products or Services caused damage to a third party.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NIVATI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS ARISING OUT OF OR RELATING TO THE ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE PRODUCTS AND SERVICES OR ANY MATERIALS OR CONTENT MADE AVAILABLE THROUGH THE PRODUCTS AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY NIVATI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE CUMULATIVE LIABILITY OF NIVATI FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PRODUCTS AND SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT PAID BY CUSTOMER TO NIVATI FOR ACCESS TO AND USE OF THE PRODUCTS AND SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; OR (B) $10,000.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR AN ASSUMPTION OF RISK, LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NO WAIVER
If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
FORCE MAJEURE
We will not be liable to you for any lack of performance, or the unavailability or failure, of the Products and Services, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
NOTICES
Unless otherwise specifically indicated, all notices given by you to us must be given to Nivati at support@nivati.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in these Terms. Notice will be deemed received and properly served when an e-mail communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such email was sent to the specified e-mail address of the addressee.
ENTIRE AGREEMENT
These Terms and each Order and any additional terms or policies expressly referred to in these Terms constitute the whole agreement between us and supersede all previous oral or written discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the Products and Services. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the additional terms or policies expressly referred to in these Terms. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this Section limits or excludes any liability for fraud.
CHOICE OF LAW
The laws of Utah, other than its conflict-of-laws principles, govern these Terms and any Disputes (as defined below) arising out of or relating to these Terms or their subject matter, including tort claims, except to the extent they are preempted by U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
SEVERABILITY
If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.
DISPUTE RESOLUTION
Except for claims seeking injunctive or equitable relief, any dispute, claim, or controversy arising out of or relating to these Terms, the Products and Services, or the relationship of the parties (each, a “Dispute”) will be resolved exclusively by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will be conducted before a single neutral arbitrator and will take place in Salt Lake City, Utah, unless the parties otherwise agree. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. Nothing in this Section will prevent either party from seeking temporary, preliminary, or permanent injunctive or equitable relief in a court of competent jurisdiction to protect its intellectual property rights or confidential information.
