Tonal Terms of Service

Last Updated: August 12, 2025

Please read these Terms of Service (the “Agreement”) carefully. Your creation of an account or use of the Service (as defined below) constitutes your consent to this Agreement.

This Agreement is between you and Tonal Systems, Inc. (“Tonal” or “we” or “us”) and applies to (a) your use of (including any access to) Tonal’s trainer and/or any Tonal-branded or Tonal Certified trainer accessories(a “Product”), and (b) your use (including any access to) (i) the embedded software and online services that Tonal makes available for use through a Product, (ii) the Tonal website (www.tonal.com), and (iii) any mobile app(s) that Tonal makes available for use in connection with a Product (the “App”) (collectively (i)-(iii), together with any software, websites or pages, cloud services, content, and other materials and services available therein, and any successor service(s) and app(s) thereto, the “Service”). 

THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, UNLESS PROHIBITED BY LAW IN YOUR JURISDICTION AND AS FURTHER SET FORTH IN SECTION 25 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.

If you are an individual accessing or using the Product or Service on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Product or Service and to any such Organization. Use of the Product or Service for commercial purposes is not permitted without a separate written agreement with Tonal or Tonal’s prior written approval; continued use of the Product or Service without Tonal’s permission or approval is at your own risk, voids the Tonal Limited Warranty, and Tonal assumes no liability for any injury or damages resulting from such use, regardless of whether you were advised of your unapproved usage in advance by Tonal. Such commercial use of the Product or Service by or on behalf of any Organization may also be subject to additional terms made available by Tonal from time to time, which are hereby incorporated by this reference into this Agreement. 

If you do not agree to this Agreement, you may not use the Product or Service.

1. Supplemental and Updated Terms. We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Product or Service (“Supplemental Terms”). This Agreement hereby incorporates all Supplemental Terms posted by Tonal through the Service or otherwise made available to you by Tonal, including: 

Tonal Text Messaging Program Terms

Tonal Terms of Sale

Tonal Limited Warranty

We may make changes to this Agreement, including any Supplemental Terms, from time to time. If we make changes, we will provide you with notice such as by posting a revised Agreement through the Service. Unless we say otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of the Service (including by continuing to maintain an account or membership) following any changes to this Agreement will constitute your acceptance of such changes. If you do not agree to all changes to this Agreement, you must discontinue using the Service. The “Last Updated” legend above indicates when this Agreement was last changed. We encourage you to check the Service regularly to learn about changes to this Agreement.

2. Eligibility.  You must be at least 15 years of age to enter into this Agreement. If you are under the age of majority where you reside, you may only enter into this Agreement with the consent of at least one parent or guardian that also agrees to be bound by this Agreement. Please note that the Product and certain Service features have additional age restrictions or additional terms for minors. See Section 6 for more information.
   
   

3. Information Submitted Through the Service. You may submit information to us through Service, and we may otherwise collect certain information about you when you use our Product and Service. For more information about how we collect, use, share and otherwise process information about you, please see Tonal’s Privacy Policy, located at https://tonal.com/pages/privacy-policy (the “Privacy Policy”). You represent and warrant that any information you provide in connection with the Product and Service is and will remain accurate and complete, and that you will maintain and update such information as needed or if requested by Tonal.
   
   

4. Jurisdictional Issues. The Service is controlled or operated (or both) from the United States and you may only use the Service in jurisdictions authorized by Tonal. Use of our Service is currently authorized only in the United States and Canada. Tonal makes no representations or warranties that the Product or Service is appropriate or available for use in any other jurisdictions. Any use of the Product or Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so.
   
   

5. Fitness-Related Content. The content and other material and services available as part of the Service may include, but not be limited to, instructional videos, exercise routines, exercise records, texts, graphics, data, articles, photos, videos, music, images, illustrations, user submissions, feedback and other media (all of the foregoing, the “Content”). Content may be protected by copyright and/or other intellectual property laws. You may only use Content as part of the Service, and you may not otherwise use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purpose any Content not owned by you.
   
   Content provided as part of the Service is provided for educational and informational purposes only and is not intended as medical advice or to replace the services of physicians. You acknowledge and agree that (i) Tonal is not a healthcare provider or fitness instructor; (ii)  the Product and Service are not medical devices and are not intended to diagnose, treat, cure, prevent, or mitigate any illness, metabolic disorder, disease or other health condition; (iii)  the Product and Service (including any recommendations and any information available through the Service that may be personalized) may not be appropriate for you, and does not constitute or replace medical advice concerning the diagnosis, treatment, cure, prevention or mitigation of any illness, metabolic disorder, disease or other health condition; and (iv)  Tonal is not responsible for any results that may (or may not) be obtained from the use of the Product or Service. Before using the Product or Service as part of any exercise program, you must consult with a physician regarding any medical condition, impairment or disability that may prevent or limit your ability to use the Product or Service. Consulting a physician before using the Product or Service as part of an exercise program is especially important if you are overweight, pregnant, nursing, diabetic, have a heart condition, or have any injuries, disabilities, or other medical conditions. There are safety hazards, risks, dangers, and potentials for injury associated with any physical or recreational activity, and you should not engage in any such activities that pose a heightened risk to you in light of your health conditions. You are solely responsible for abiding by any physician recommendation.
   
   

6. Family Content.  You may permit minors who are at least 15 years old to use the Product and Service only if (i) the minor has accepted this Agreement,(ii) you are the minor’s parent or guardian and have determined that the minor can safely fit and use the Product and Service, and (iii) you remain present and supervise the minor at all times during use of the Product and Service. You are fully responsible for the minor’s safe use of the Product and Service. 
   
   

7. Waiver. You understand that by using the Product or Service, you may be exposed to a variety of hazards and risks, foreseen or unforeseen, including risks that arise as a result of entering a gym space or any other space or environment in which you access or use the Product or Service, performing physical activity, and/or using the Product on which the Service is available. You understand that injuries or damage could occur by natural causes or activities of other persons, including the activities of other persons using such Product, or other third parties (including third-party fitness instructors and other exercise participants), whether as a result of negligence or otherwise. To the fullest extent permitted by applicable law, you voluntarily assume all risk of loss, damage and injury to person or property that may arise from, or that is related to, your use of the Product and Service, whether such risk is known or unknown to you.
   
   You hereby waive and release Tonal and its affiliates and their respective shareholders, directors, officers, employees, investors affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), to the maximum extent permitted by law, from any responsibility, liability, claim, action, suit, demand and/or damages (actual or consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or in connection with the use of the Product or Service (including with respect to any physical injury or death). You acknowledge that neither Tonal nor the Affiliated Entities will incur any obligation to you under any legal theory as a result of your use of the Product or Service. You agree that this release is binding upon you and your heirs, executors, administrators, successors and assigns.
   
   If you are a California resident, the foregoing release is intended to apply to all claims not known or suspected to exist, with the intent of waiving, if applicable, the effect of California Civil Code Section 1542 (which states as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY) and other analogous laws or legal principles of any jurisdiction requiring the intent to release future unknown claims.  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.
   
   

8. Rules of Conduct. In connection with the Service and any communications and interactions with Tonal representatives relating to the Service or the Product, you must not:

• Post, transmit or otherwise make available through or in connection with the Service any materials (including Submissions, as defined below) that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) unlawful, defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.

• Post, transmit or otherwise make available through or in connection with the Service (including Submissions) any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).

• Use the Service for any commercial purpose, unless authorized to do so in writing by Tonal in a separate written agreement, or for any purpose that is fraudulent or otherwise tortious or unlawful.

• Harvest or collect information about users of the Service.

• Interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service; or violate any requirement, procedure or policy of such servers or networks.

• Restrict or inhibit any other person from using the Service with his or her own Product.

• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without Tonal’s express prior written consent.

• Reverse engineer, decompile or disassemble any portion of the Service, except where such restriction is expressly prohibited by applicable law.

• Remove any copyright, trademark or other proprietary rights notice from the Service.

• Frame or mirror any portion of the Service or otherwise incorporate any portion of the Service into any product or service.

• Systematically download and store the Service or the Content.

• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Content, or reproduce or circumvent the navigational structure or presentation of the Service.

• Use your Product if you have been told not to by Tonal.
  
  You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.  An internet connection is always required to use the Product and Service, even if you are not paying for an active subscription.
  
  
  

9. Offerings. The Service may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, “Offerings”), as well as references and links to Offerings. Such Offerings may be made available by Tonal or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Service of any listing, description or image of a good or service does not imply our endorsement of such Offering or affiliation with the provider of such Offerings. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Offerings (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Offerings, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Offerings.
   
   

10. Transactions. We may make available the ability to order, purchase or otherwise obtain certain Content or Offerings through the Service (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your name, credit card number and its expiration date, and your billing address. You are responsible for updating your billing address and for keeping a valid credit card on file to avoid disruptions in the Service. You represent and warrant that you have the right to use any payment information that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
    
    Content made available to you via a Transaction is licensed, not sold, to you. In certain situations, Content you previously completed a Transaction for may later be removed from the Service and become unavailable for further use by you. By making a Transaction, you represent that the applicable Content and/or Offerings will be used only in a lawful manner.
    
    Tonal reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Content and/or Offerings; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Content and/or Offerings. In the event we need to make a change to a Transaction, we will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. There are no refunds or exchanges on Content or Offerings. You agree to pay all charges incurred by you or on your behalf through the Service, at the prices in effect when such charges are incurred, including taxes (which are your responsibility) and any applicable shipping and handling charges. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
    
    All Transactions for physical goods are made pursuant to a shipment contract and, as a result, risk of loss and title for physical Content and/or Offerings, as applicable, pass to you upon delivery of the Content and/or Offerings to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
    
    

11. Memberships. Certain features, content, functionalities and other aspects of the Service may be available only through a recurring subscription program (the “Membership Program”) for users with a valid membership (each, a “Member”) and usage of the Tonal trainer, regardless of membership, requires a continuous Wi-Fi connection. The fee for the Membership Program (the “Membership Fee”) is the amount currently identified on our website at https://www.tonal.com/product/tonal/, plus any applicable taxes, and is non-refundable. The Membership Fee is separate from the cost of the Product. Tonal may, in its sole and absolute discretion, change the Membership Fee from time to time.
    
    The Membership Fee is payable on a monthly basis.  Any initial or subsequent commitment longer than a month will be disclosed when you sign up via the Tonal trainer, where you will have the option to accept or reject it.  After the initial one-year or any other length commitment you’ve agreed to of a specific duration, each membership will renew automatically on a monthly basis, unless you cancel your membership at least 24 hours before any such renewal date. If, during your initial one-year Membership Program commitment, or during any other fixed term you’ve agreed to, you pause your membership or there is a disruption in your membership payments, your Membership Program commitment will be extended by the duration of the pause or disruption. Unless you notify us at least 24 hours (and no more than 30 days) before any such renewal date that you wish to cancel your membership or that you do not wish to automatically renew your membership, you understand and expressly agree that your membership will automatically continue for additional periods of one month each, and you authorize Tonal (without notice to you, unless required by applicable law) to collect and charge the then-applicable Membership Fee and any applicable taxes, for each such renewal, using any payment information that Tonal has on file for your account. You will provide Tonal with alternate payment information if the payment information Tonal has on file for you is no longer valid or if you choose to use a different payment method. Payment information you provide must be for a form of payment that Tonal accepts. For clarity, if your payment card expires or is no longer valid, your membership is paused, or we are otherwise unable to charge a Membership Fee payment to your payment card for any particular month during your initial Membership Program commitment, you are still responsible for making twelve (12) monthly Membership Fee payments, which may mean that the monthly payments for your initial Membership Program commitment continue until you have made twelve monthly payments. The Tonal trainer will stop functioning if you do not complete the twelve (12) monthly payments of the required initial Membership Program commitment.
    
    If you wish to cancel your membership, you may do so on your Tonal trainer by tapping your Account under the Profile & Account tab and selecting “Cancel” under Membership Management.  Alternatively, you may contact our Customer Care team here or at (855) 698-6625. Please contact our Customer Care team at least 24 hours (and no more than 30 days) prior to your desired last day of the Membership Program.
    
    All Membership Fee payments are final. Except as otherwise required by applicable law, any paid Membership Fees (or payable Membership Fees for the remainder of an initial Membership Program commitment) are non-cancellable and non-refundable. If you decide to cancel your membership, your membership will automatically expire at the end of your then-current membership term. For example, if you cancel your membership in the middle of a monthly billing cycle, your membership will continue until the end of that billing cycle.
    
    Each membership is associated only with a single household and cannot be used to enable any benefits of the Membership Program on any Product outside of your household. Please note that multiple residences that you maintain for your own personal use are considered a single household. A membership may permit the Member to create and manage additional user accounts, solely for family members and personal guests of the Member, that are permitted to use the benefits of the Membership Program on any Product associated with a valid membership (“Additional Users”). Each Additional User must accept the terms and conditions of this Agreement prior to using the Service, and the Member will be responsible for all acts and omissions of each Additional User under the membership.
    
    Tonal reserves the right, in its sole and absolute discretion, to exclude any individual(s) from the Membership Program or to terminate any membership, for any reason, including verbal, physical, or written abuse of Tonal associates or the use of vulgar or abusive language with Tonal Customer Care, abuse of the Membership Program, failure to comply with this Agreement, failure to pay Membership Fee, failure to follow instructions related to the Product or Service (for example, updating software or accepting any updated or substituted parts), or fraud, misrepresentation or other conduct detrimental to the interests of Tonal, solely as determined by Tonal in its sole discretion. Any such exclusion or termination may affect eligibility for further participation in the Membership Program.
    
    Please note that if your membership expires or is canceled or terminated, you and any Additional Users may no longer have access to any data, information or other Content (including historical data, usage records, custom workouts, etc.) associated with your membership, or to any advanced weight modes and other membership-based features. For clarity, the ability to perform any workouts using the Product without a valid membership may be limited to adjusting the weight dial for the weight being lifted. This limited functionality, however, still requires that the Product has a continuous Wi-Fi connection.  
    
    

12. Registration; User Names and Passwords. You may need to register to use all or part of the Service. We may reject, change, or require that you change any user name (which may be your e-mail address), password or other information that you provide to us in registering. Your login credentials are for your personal use only and should be kept confidential; you, and not Tonal, are responsible for choosing a secure password and for any use or misuse of your username or password; and you must promptly notify us of any confidentiality breach or unauthorized use of your username or password, or your Service account.
    
    You are solely responsible for all use of the Service by any Additional Users and any other users who access the Service through you or your Product.  As a reminder all usage of the Service is subject to the provisions of this Agreement.
    
    

13. Profiles and Forums. You and other visitors to or users of the Service may make available certain materials (each, a “Submission”) through or in connection with the Service, including on profile pages and through the Service’s interactive services, such as workout sharing features, message boards, competition leaderboards and other forums, and chatting, commenting and other messaging functionality. Tonal has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Service, you do so at your own risk.
    
    

14. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
    
    In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Product or Service or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous and without restriction, and does not place Tonal under any fiduciary or other obligation.
    
    You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Product or Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
    
    

15. Enforcement and Monitoring. We can enforce the Agreement, including Section 8, at our sole discretion. Choosing not to enforce the Agreement in some instances does not mean we waive our right to enforce it in other instances. Nothing in this Agreement, including Section 8, creates any right or private right of action on the part of any third party or any reasonable expectation that the Service will be free of conduct or content that is prohibited by the Agreement, or that prohibited content will be promptly removed after it has been posted. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Service, or analyze your access to or use of the Product or Service.
    
    

16. Your Limited Rights. The Service is licensed (not sold) to end users, including Members. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Tonal to use the Service, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to (a) use the Service (excluding the App) on the Product, solely for your personal, non-commercial use; and (b) install and use the App on a mobile device that you own or control, solely for your personal, non-commercial use and otherwise in conformance with applicable operating system agreements. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Service, and remove (that is, uninstall and delete) the App from your mobile device. You may not copy, reproduce, or modify, create derivative works from, translate, publish, broadcast, synchronize, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose the Service. You acknowledge that the Service contains materials subject to copyrights, patents, trade secrets and/or other intellectual property rights (“Intellectual Property”) of Tonal, and, in order to protect such Intellectual Property, you agree not to disassemble, decompile or reverse engineer the Service nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable law. Tonal reserves all rights, including Intellectual Property rights and all associated goodwill, and licenses in and to the Service not expressly granted to you under this Agreement. 
    
    

17. Tonal’s Proprietary Rights. We and our applicable licensors own the Service, which is protected by proprietary rights and laws. Our trade names, trademarks, service marks, logos, slogans including TONAL, BE YOUR STRONGEST, POWER PROGRESS, and any associated logos are Tonal’s Intellectual Property. All trade names, trademarks, service marks and logos on the Product or Service not owned by us are the property of their respective owners. Nothing contained in the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
    
    

18. Third Party Materials; Links. Certain Service functionality may make available access to information, products, services, Offerings, terms, conditions, policies and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
    
    We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any Intellectual Property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Tonal with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
    
    Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
    
    

19. Promotions. Any sweepstakes, contests, raffles, surveys, games, referral programs, or similar promotions (collectively, “Promotions”) made available through the Service may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern with regard to the relevant Promotion.
    
    

20. Beta Features. From time to time, Tonal may offer pre-general availability features or tools as part of the Service that are identified as "Early Access," "Alpha," "Beta," "Preview," "Experimental," or a similar designation (collectively “Beta Features”). Such Beta Features are made available for users to test and evaluate. Your access to Beta Features may be subject to Supplemental Terms, which Tonal will provide to you prior to your use of the Beta Features.  Be aware that Beta Features may be more prone to errors or inaccuracies than other part of the Service. Beta Features are provided “as is,” without any express or implied warranties or representations of any kind and may be modified or discontinued at Tonal’s sole discretion at any time without prior notice. Tonal is under no obligation to generally release any Beta Features. 
    
    

21. Disclaimer of Warranties. To the fullest extent permitted under applicable law and except as applicable in Tonal’s Limited Warranty: (a) the Product and Service and any Offerings and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) Tonal disclaims all warranties with respect to the Product and Service and any Offerings and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Tonal and the Affiliated Entities, and their respective successors and assigns.
    
    While we try to maintain the timeliness, integrity and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, error-free, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors, viruses or other harmful content, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration, contact us at support@tonal.com with a description of such alteration and its location on the Service.
    
    You should reference the Tonal Terms of Sale for the terms applicable to the Product. 
    
    

22. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) TONAL AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY OR OTHER THEORY, INCLUDING FOR DAMAGES FOR LOSS OF ENJOYMENT, PROFITS, USE, DATA OR GOODWILL, OTHER INTANGIBLE LOSS, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES); (B) WITHOUT LIMITING THE FOREGOING, TONAL AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY OFFERINGS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH, OR FROM TONAL’S TERMINATION OF THIS AGREEMENT; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR ANY OFFERINGS OR THIRD PARTY MATERIALS IS TO STOP USING THE SERVICE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF TONAL AND THE AFFILIATED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, RELATED TO THE PRODUCT, SERVICE OR THIS AGREEMENT SHALL BE THE GREATER OF (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO TONAL FOR THE PRODUCT AND SERVICE WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE; AND (2) TEN U.S. DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH TONAL AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THE LIMITATIONS SET FORTH IN THIS SECTION 22 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TONAL AND YOU.
    
    

23. Indemnity. To the fullest extent permitted under applicable law, you agree to indemnify, hold harmless, and, at Tonal’s request, defend Tonal and the Affiliated Entities, and their respective successors and assigns, from and against all claims, demands, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) any access to or use of, or activities in connection with, the Product or Service (including all Submissions) by you, your Additional Users, and/or any other person who uses the Service through you or your Tonal trainer; and (b) any violation or alleged violation of this Agreement by you.
    
    

24. Modification or Termination. This Agreement is effective until terminated. Tonal may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if Tonal believes that you have violated or acted inconsistently with the letter or spirit of this Agreement, solely as determined by Tonal in its sole discretion. Upon any such termination or suspension, your right to use the Service will immediately cease, and Tonal may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Any section of the Agreement which by its nature should survive termination of the Agreement will survive, including Sections 1–8, 14-15, and 17-31.
    
    Additionally, we may, at any time and without liability, modify or discontinue all or part of the Service (including access to any part of the Service via any third-party links); charge, modify or waive any fees required to use any part of the Service; or offer opportunities to some or all Service users.
    
    

25. Arbitration. 

PLEASE READ THIS SECTION CAREFULLY BECAUSE UNLESS PROHIBITED BY LAW IN YOUR JURISDICTION IT REQUIRES YOU AND TONAL TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU AND TONAL CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND TONAL FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND TONAL AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. TONAL AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. 

THE PARTIES TO THESE TERMS ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 25(d), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION.

(a) Disputes to Which This Section Applies. The terms of this Section 25 apply to all Disputes between you and Tonal.  “Dispute” means any disputes or claims (excluding those exceptions listed below) arising out of or related to this Agreement, the Product or Service or any aspect of the relationship between you and Tonal, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, including disputes or claims arising out of or relating to interpretation, application, enforceability, revocability or validity of these arbitration terms or any portions of them.

(b) Informal Dispute Resolution. If you have a Dispute with Tonal or if Tonal has a Dispute with you, you and Tonal will first attempt to resolve the Dispute informally in order to try and resolve the Dispute faster and reduce costs for both parties. You and Tonal will make a good-faith effort to negotiate the resolution of any Dispute for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with this Agreement. 

You will send any Claimant Notice to us at legal@tonal.com or by certified mail to the attention of Tonal’s Legal Department at the Tonal address set out below in Section 28. Tonal will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Tonal. The Claimant Notice sent by either party must include (i) the sender’s name, address, and any other contact information, (ii) a description of the nature and basis of the Dispute and (iii) the relief being sought.

The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so.

You or Tonal can file a Dispute in arbitration only after the end of the Informal Resolution Period. You or Tonal cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Tonal file a Dispute in court or proceed to arbitration without complying with the requirements in Section 25, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.

The statute of limitations and any filing fee deadlines for a Dispute will be tolled for the duration of the Informal Resolution Period for that Dispute so that the parties can engage in this informal dispute-resolution process.

(c) Claims Subject to Binding Arbitration; Exceptions. Except for (i) claims that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief), (ii) claims exclusively related to the intellectual property or intellectual property rights of you or Tonal, and (iii) actions for injunctive relief in a court of law to preserve the status quo while an arbitration proceeds, all Disputes that are not resolved in accordance with Section 25(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Disputes include disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court. Nothing in this Agreement, however, will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us.

This Section 25 only applies to Disputes and does not prevent either party from taking unilateral actions they are entitled to take under this Agreement. This means, for example, that you can cancel your membership at any time without needing to arbitrate the decision first. Likewise, Tonal may enforce this Agreement through actions like terminating or suspending your use of the Service at any time without needing to arbitrate the decision first. If you or Tonal believe that the other has made a mistake about what actions the Agreement allows them to take (e.g., you disagree with Tonal suspending or terminating your access to the Services), that disagreement is a Dispute to which the binding individual arbitration requirements in this Section 25 would apply.

(d) Opt-Out of Arbitration Agreement.  You may opt out of binding arbitration by emailing support@tonal.com with your first name, last name, address and relevant membership account information within thirty (30) days of the date you first accepted a version of this Agreement.  To be effective, the opt-out notice must clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 26.

(e) Arbitration Procedures.  Subject to the terms of this section, Disputes may only be settled by binding individual arbitration conducted by the American Arbitration Association (“AAA”) https://adr.org/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). For Disputes arbitrated by the AAA, if you are a “Consumer,”  meaning you use the Product and Service only for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules, as amended by this Agreement (the “Rules”) will apply to any arbitration between you and Tonal. If you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to any arbitration between you and Tonal.

(f) Arbitration Procedure and Location.  You or Tonal may initiate arbitration of any Dispute not resolved during the Informal Resolution Period by filing a demand for arbitration (an “Arbitration Demand”) with AAA in accordance with the Rules.

The arbitration will be conducted by a single arbitrator in the English language. You and Tonal both agree that the arbitrator will be bound by the terms of this Agreement.

For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Disputes in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator in accordance with the Rules. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court of competent jurisdiction.

(g) Arbitration Fees.  Each party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement.

(h) Frivolous or Improper Disputes.  To the extent permitted by applicable law, a claimant must pay all costs incurred by the responding party, including any attorney fees, related to a Dispute if an arbitrator determines that (i) the Dispute was frivolous or (ii) the Dispute was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.

(i) Confidentiality.  If you or Tonal submits a Dispute to arbitration, you and Tonal agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery in the arbitration. You and Tonal agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.

(j) Mass Disputes.  If 25 or more Claimant Notices are received by a party that raise similar Disputes and have the same or coordinated counsel, these will be considered a “Mass Dispute” and the provisions of this Section 25(i) will apply to all such Claimant Notices. A Claimant Notice in a Mass Dispute may proceed to arbitration only as set forth below.

(1) Applicable Rules. Any Arbitration Demands based on these Claimant Notices filed in arbitration shall be subject to the AAA’s then-current Mass Arbitration Supplementary Rules, as modified by this Agreement. Any disputes over whether an Arbitration Demand should be considered part of the Mass Dispute will be decided by the AAA as an administrative matter. The following procedures are intended to supplement the AAA’s Mass Arbitration Supplementary Rules, and to the extent the procedures conflict with those Rules, to supersede them.

(2) Initial Arbitrations. The parties shall identify an initial set of 20 Claimant Notices to proceed as Arbitration Demands in order to maximize efficiencies in the management, investigation, and arbitration of the remaining Claimant Notices in the Mass Dispute. The initial set shall be selected as follows. Counsel representing the claimants in a Mass Dispute must notify the other party in writing (email will suffice) when all or substantially all Claimant Notices for the Mass Dispute have been provided. Counsel for all claimants and counsel for the responding party each shall then select 10 Claimant Notices to proceed as Arbitration Demands. Claimants shall then file Arbitration Demands for the 20 selected Claimant Notices. No Claimant Notice or Arbitration Demand may be filed or deemed filed, and no related arbitration fees may be assessed, until the Claimant Notice is selected to proceed to arbitration following the process set forth in this Section. A single arbitrator will preside over each Arbitration Demand, and shall preside only over one Arbitration Demand, unless the parties agree otherwise.

(3) Mediation. Upon conclusion of the 20 Initial Arbitrations (or sooner if the parties agree) and before proceeding with any other Arbitration Demands, the parties must engage in a single mediation applicable to all Claimant Notices in the Mass Dispute. The parties shall have 30 days following the conclusion of the last of the initial arbitrations to agree on a mediator. If they are unable to do so, the AAA may appoint one as an administrative matter. No additional Arbitration Demands may be filed until 30 days after such mediation concludes or 90 days after the appointment of a mediator, whichever is sooner.

(4) Remaining Claimant Notices and Arbitrations. If mediation concludes with 100 or more unresolved Claimant Notices, any remaining Claimant or the receiving party to a remaining Claimant Notice may opt out of arbitration of all Claimant Notices that were not resolved in the initial 20 Arbitration Demands or mediation. Such an election may only be for all Claimant Notices remaining in the Mass Dispute, not a portion thereof. To be effective, such election must be communicated in writing (email suffices) to counsel for the other party within 30 days of mediation concluding. Claimant Notices released from the arbitration requirement must be resolved according to Section 26.

If complaints based on Claimant Notices that were released from the arbitration requirement are filed in court, the claimants may seek class treatment, although to the fullest extent allowed by applicable law, the putative classes must be limited to those claimants in the Mass Dispute whose claims remain unresolved, and for which a Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis and may raise any other defenses available under applicable law.

If the mediation process concludes with fewer than 100 Claimant Notices remaining or if no timely election to opt out of arbitration is made, the AAA will randomly select 30 Claimant Notices (or the total remaining if less than 30) that comply with Section 25(b) to proceed in arbitration in the same manner as described in Section 25(i)(2), above. Once such arbitrations have concluded, the parties will repeat this process until all Claimant Notices in the Mass Dispute have been resolved.

(k) Federal Arbitration Act.  This Agreement affects interstate commerce, and the enforceability of this Section 25 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, this Agreement, and the AAA rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Tonal to satisfy one of our individual Disputes (that the arbitrator determines are supported by credible relevant evidence). To the extent that you prevail on a Disputes and seek public injunctive relief (that is, injunctive relief whose primary purpose and effect is to prohibit and enjoin conduct harmful to the general public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Disputes in arbitration.

(l) Waiver of Class or Consolidated Actions.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TONAL WILL ONLY BRING DISPUTES OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCT, THE SERVICE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TONAL IN AN INDIVIDUAL CAPACITY AND SHALL NOT SEEK TO BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTIONS; CLASS ARBITRATIONS OR ANY OTHER KIND OF CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS. 

(m) Severability.  If this Section 25 is found to be unenforceable or unlawful such that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction under Section 26 and not brought in arbitration under Section 25. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.

(n) Alternative to Arbitration. If you are a resident of a jurisdiction that prohibits arbitration agreements or class action waivers in consumer contracts and this Agreement is deemed to be a consumer contract, the portions of this Agreement related to arbitration will not apply to you and the governing law and venue terms in Section 26 will apply to you. 

26. Governing Law and Venue. The terms of this Agreement are governed by the laws of the State of California, United States of America (including federal arbitration law), without regard to its principles of conflicts of law, and regardless of your location.  If any Dispute between you and Tonal is not subject to arbitration pursuant to Section 25, then the state and federal courts located in the County of San Francisco County, California, will have exclusive jurisdiction. You and Tonal waive any objection to venue in any such courts. If you are a resident of a jurisdiction that requires consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction and this Agreement is deemed to be a consumer contract, then this section will not apply to you to the extent that local law conflicts with this section.
    
    

27. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Tonal does not endorse any of the products or services listed on such site and Wikipedia may not be authoritative as its audience may revise the page contents at will.
    
    

28. Information or Complaints. If you have a question or complaint regarding the Product or Service, please send an e-mail to support@tonal.com. You may also contact us by writing to 69 Converse St, Ste 200, San Francisco, CA 94103, or by calling us at 855-698-6625. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
    
    

29. Repeat Infringer Policy; Copyright Claims. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others.
    
    If you believe in good faith that materials available on the Service infringe your copyright, you (or your agent) may contact Tonal’s registered DMCA Agent as follows: By mail to Tonal Copyright Agent, 69 Converse St, Ste 200, San Francisco CA 94103; by e-mail to dmca@tonal.com; or by phone at (855) 698-6625.  Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on the Service is infringing, you may be liable to Tonal for certain costs and damages.  We suggest that you consult your legal advisor before filing a DMCA notice.
    
    

30. Export Controls. You are responsible for complying with applicable export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
    
    

31. Language. This Agreement is a contract used in relations with persons outside Quebec. The parties expressly agree to contract in the English language.
    
    

32. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Tonal. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, (a) the unenforceable or unlawful provision will be deemed severable from this Agreement; (b)  severance of the unenforceable or unlawful provision(s) will not affect the validity or enforceability of any remaining provision and have no impact whatsoever on the remainder of the Agreement; and (c) the unenforceable or unlawful provision(s) may be revised to the extent required to render the Agreement enforceable or valid, and the rights and responsibilities of the parties will be enforced accordingly, so as to preserve the Agreement and the intent of the Agreement to the fullest extent possible. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent, and any attempted assignments in violation of the foregoing will be void. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, has no legal or contractual effect, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Tonal relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements, statements, representations, or understandings between you and Tonal relating to such subject matter Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Tonal will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and is not intended to confer third-party beneficiary rights upon any other person or entity.
    
    

33. Apple-Specific Terms. In addition to other provisions in this Agreement, this Section 32 applies with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Tonal in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Tonal’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
    
    

34. Feed.fm-Specific Terms. There is no affiliation, connection, association or endorsement of the products, goods or services displayed on this page by the copyright owners, featured recording artists and authors of the sound recordings (and the musical works embodied therein) transmitted through the Feed.fm player.