U.S. Terms of Service
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Services, and may subject you to civil and criminal penalties.
The Services are only offered to individuals over the age of 18. The App is not a replacement for medical treatment. You are solely responsible for your usage of the App. If you have or think you may have any serious health or back-related condition, do not use the Services and contact your doctor right away for further medical evaluation. If any of the below may apply to you, do not use the App unless you have received a medical examination from a physician clearing you for use of the App or the specific physical exercises used in the App.
Do not use the Kaia App if you have any health condition that may cause pose a risk to you when you use the app, including the following:
- Potential spinal injury or fracture. Do not use the App if your back pain is related to a fall or other traumatic injury and has not been medically examined to rule out damage to the spine.
- Decreased bone density. Do not use the App if you have a history of low bone density (bone loss related to age or other medical reasons) unless you have received a medical examination from a physician clearing you for the physical exercises used in the App.
- Spinal tumor. Do not use the App if you have or have had a spinal tumor, a history of cancer, or excessive night sweating, unexplained weight loss, and/or unexplained fatigue unless you have received a medical examination from a physician clearing you for physical exercises such as those used in the App
- Spinal infection. Do not use the App if you have a history of unexplained fever, a recent bacterial infection, unexplained potential symptoms of infection (feeling ill and/or fatigued), or a recent injection anywhere in the body unless you have received a medical examination from a physician clearing you for physical exercises such as those used in the App
- Disc herniation. Do not use the App if you have a history of experiencing numbness or weakness in your legs, loss of sensation in the genital area, or bowel or bladder incontinence.
- Spinal surgery. Do not use the App if you have had previous spinal surgery, if you have been recommended for surgery, or if you are scheduled for surgery.
- Advanced heart disease. Do not use the App if you have a history of heart disease, or shortness of breath after walking less than 2 flights of stairs, or other unexplained cardiovascular complaints (such as palpitations, leg edema, or cough).
- Conditions affecting your control over your lower body. Do not use the App if you have any conditions associated with impaired control over your lower body (from your hips to your toes), such as neurological conditions.
- Musculoskeletal problems affecting major joints in the lower body. Do not use the App if you have any conditions associated with pain or reduced function of the major joints in your lower limbs.
- Pregnancy. Do not use the App if you are or think you may be pregnant.
- Gait imbalance or history of falls. Do not use the App if you have gait imbalance, a history of falls or if you have dizziness or low blood pressure that is induced by exercise.
- Coagulopathy or history of bleeding event. Do not use the App if you have a history of hemorrhage or bleeding events, or if you have a coagulopathy or inherited bleeding disorder.
If you have been referred to a specialist, if you are currently seeing a specialist, or if you have seen a specialist in the past in connection with your condition, you should not use the Services.
If you are accessing the Services from the European Union, please click here to review the Terms of Service applicable to you. You are hereby prohibited from accessing or using the Services from any territory where any part of the Services are illegal. If you access the Services from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
NO MEDICAL ADVICE
The App and Services enable Users to input information about their experiences with back pain, and receive exercise suggestions based on those symptoms. You can use the Services to track your exercise schedule and the progress of your symptoms. As you do, you will receive updated suggestions as your symptoms evolve.
KAIA DOES NOT PROVIDE MEDICAL ADVICE.
THE INFORMATION AND OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. YOU SHOULD ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER REGARDING QUESTIONS YOU HAVE ABOUT ANY MEDICAL CONDITION BEFORE MAKING HEALTH CARE DECISIONS.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. NEVER DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE OR DISREGARD SUCH ADVICE BECAUSE OF SOMETHING YOU HAVE READ ON THE APP OR SITE!
RELIANCE ON ANY INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SERVICES OR OTHERWISE PROVIDED BY KAIA IS SOLELY AT YOUR OWN RISK.
Changes to these Terms
Kaia reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively "amend" or "update"). If we choose to amend the Terms, we will update the "Last Updated" date at the top of the Terms and post the updated version. In the case of a material change, we may notify you by e-mail or another means.
By continuing to use the Services after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the "Dispute Resolution" section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Services.
No other modification, amendment, supplement of or to the Terms will be binding on Kaia unless it is in writing and signed by an authorized representative of Kaia.
Modifications and Updates to the Services
Kaia reserves the right, in its sole discretion, to modify or discontinue offering the Services, in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, "Updates"). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the Internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Kaia has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
Before you are able to use the Services, you will be required to register for a user account. You may register to create an account via the Website or App.
You may not register for an account:
- if you are not able to form legally binding contracts (for example, if you are under the age of 18);
- if you are a person barred from receiving entering into contracts under the laws of the United States or other applicable jurisdiction;
- on behalf of any other person; or
- on behalf of any company or other entity.
No person may have more than one active account at any given time.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Kaia account or any other account that you may connect to your Kaia account. You agree not to disclose your username or password to any third party, and you agree to notify Kaia immediately at firstname.lastname@example.org of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Kaia cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Account Suspension and Cancellation
We reserve the right to cancel accounts of Users who fail to comply with the Terms, including failure to pay fees when due as set forth in the "Fees and Payment Terms" and failure to comply with the terms and conditions regarding User conduct, as set forth in the "General User Conduct" section below.
FEES AND PAYMENT TERMS
If you are a U.S. user whose access to Kaia Services is provided by your employer or insurance plan, the terms in this Section VI do not apply to you because your employer or insurance plan will pay Kaia directly.
You agree to pay the monthly subscription fee(s) at the rates in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee(s) will go into effect for the next billing period after we provide notice of the change.
YOU ARE RESPONSIBLE FOR PROVIDING KAIA WITH VALID CREDIT CARD OR PAYMENT ACCOUNT DETAILS AND FOR THE TIMELY PAYMENT OF ALL FEES. Kaia’s third party payment processor will automatically charge the credit card or payment account associated with your account at the beginning of the billing period, and billing will recur automatically at monthly intervals until you change or terminate your account. If you want to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account; this may temporarily disrupt your access to your account while Kaia’s third party payment processor verifies your new payment information. Any change in the chosen payment method will go into effect for the next billing period.
Kaia itself does not collect or store payment card information. Our payment processor is PCI-compliant.
If Kaia’s third party payment processor is unable to successfully charge your credit card or payment account for fees due, we reserve the right to revoke or restrict access to your account, or terminate your account. If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will not receive a refund for any amounts you already paid for that billing period. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
We may contact you via email regarding your account, for reasons including, without limitation, a problem with your credit card or payment account.
Free Trial Offers
If you receive a free trial offer for a specific time period, you will not be charged during the period of the free trial, but the subscription fee will be automatically charged to the credit card associated with your account for the subsequent period the day after your free trial period has ended, in advance, in accordance with the “Subscriptions” terms stated above. Thereafter, you will be charged at monthly intervals until you decide to cancel. Please make a note of when your free trial will expire as you may not receive additional notice prior to the automatic charge if you do not cancel before the free trial period expires. Free trials are limited to one per person. If you attempt to register for a second free trial offer, Kaia will automatically charge your credit card in accordance with the “Subscriptions” terms stated above. If you do not wish to pay the applicable fees for a subscription, you should cancel your account before the free trial period ends and not complete any subsequent registration for a subscription.
Unless we state in writing otherwise, all fees and charges are nonrefundable.
USER CONDUCT GUIDELINES
Users may not:
- access, copy, store or use any aspect of the App, Website, or Services for any purpose other than your own personal use;
- distribute, disclose, publish, sell, rent or otherwise expose any aspect of the Services to any third party, except your physician or other qualified health care provider, for any purpose except your own personal treatment, or permit your physician or other health care provider to access, copy, store or use any aspect of the Services for any other purpose;
- prepare derivative works from the Services;
- share your user ID or transfer your account to any person without our consent
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Services if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Services;
- access, search, collect information from, or otherwise interact with the Services whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by "scraping," "crawling" or "spidering" the Services, to systematically retrieve content in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots.txt file only);
- access the Services other than through the currently available, published interfaces that are provided by Kaia, unless you have been specifically authorized to do so in a separate agreement with Kaia;
- mirror or frame any page, feature, functionality, tool or content the Services, copy any aspect of the Services, or use or display Kaia's name or any of Kaia's other trademarks, logos or proprietary materials, without Kaia's express written consent;
- interfere with, disrupt, damage or compromise the Services or our systems or the access of any user, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Services or otherwise imposing an unreasonable or disproportionately large load on the Website or App;
- access, tamper with or use non-public areas of any of the Services, Kaia's computer systems, or the technical delivery systems of Kaia's providers;
- probe, scan, or test the vulnerability of any system or network of Kaia or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Kaia or any of Kaia's providers or any other third party to protect the Services;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Services;
- export or re-export the Services, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Services or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
Kaia reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Kaia has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Services by any user, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Kaia, (iii) to enforce and to ensure a user's compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Kaia, its users or members of the public, and (vi) for the purpose of operating and improving the Services (including for customer support purposes).
You agree to cooperate with and assist Kaia or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
Account Suspension and Cancellation
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account in response to a suspected breach of the Terms, and take technical and legal steps to prevent you from using our Services. If Kaia has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Kaia’s reasonable satisfaction.
Once your account is terminated, Kaia will have the right, but not the obligation to delete any or all of the information and content submitted, uploaded or otherwise provided by you.
When an issue arises, we reserve the right to consider such User's performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
INTELLECTUAL PROPERTY RIGHTS & LICENSES
The Services, including any and all Websites and Apps, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Services, and all intellectual property rights therein are the exclusive property of Kaia and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Kaia (the "Kaia Marks") are the property of Kaia, and that you are not permitted to use the Kaia Marks without our prior written consent.
Subject to your compliance with the Terms, Kaia grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Services, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to personally use the Services as provided by Kaia in the manner permitted by the Terms.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Kaia or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Kaia's sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kaia or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Services ("Feedback"). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Kaia. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Kaia or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Kaia all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Kaia’s rights in such improvements, enhancements and modifications.
THIRD PARTY TERMS
Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Services through an Internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Kaia is not liable in any way for any third party charges.
Links to Third Party Websites and Services
Kaia does not recommend or endorse any tests, physicians or other health care providers, products or procedures that may be referenced, discussed or advertised on the Services.
The Services may provide links to third-party websites, resources or services. You acknowledge and agree that Kaia is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Kaia of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
Apps Downloaded from Third Party App Stores
Our App may be available for download from third party app stores which are not owned or operated by Kaia. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.
Without limiting the foregoing, any Apps accessed through or downloaded from Apple's App Store (an "App Store Download") may only be used (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system), and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms and Conditions.
Without limiting the foregoing, the following applies to App Store Downloads:
- You acknowledge and agree that (i) these Terms are between you and Kaia only, and not Apple, and (ii) Kaia, not Apple, is solely responsible for the App Store Download and content thereof. Your use of the App Store Download must comply with the App Store Terms and Conditions.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Download.
- In the event of any failure of the App Store Download to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Download to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Download. As between Kaia and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kaia.
- You acknowledge that, as between Kaia and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Download or your possession and use of the App Store Download, including: (i) product liability claims; (ii) any claim that the App Store Download fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third-party claim that the App Store Download or your possession and use of that App Store Download infringes that third party's intellectual property rights, as between Kaia and Apple, Kaia, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You acknowledge and agree that Apple and its subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Download, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Download against you as a third party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third party terms and conditions when using the App Store Download.
WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
Warranties by Users
You represent and warrant to Kaia that:
- you have the power and authority to accept and agree to the Terms,
- you own or control all of the rights necessary to provide the information that you provide and to grant the rights and licenses granted herein,
- the exercise by Kaia of the rights granted by you hereunder will not cause Kaia to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, KAIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- INFORMATION AND OTHER CONTENT PROVIDED ON OR THROUGH THE SERVICES DOES NOT CONSTITUTE MEDICAL PRACTICE OR ADVICE, NOR IS IT INTENDED TO REPLACE THE NECESSITY OF CONSULTATION WITH A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL.
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, KAIA DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE SERVICES, (II) THE ACTS OR OMISSIONS OF ANY PERSON(S) WITH WHOM YOU MAY COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, AND (III) ANY CONTENT ACCESSED OR VIEWED IN CONNECTION WITH THE USE OF THE SERVICES.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM AND CONTENT, VIEWING CONTENT IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE KAIA AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL KAIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KAIA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- IN THE CASE OF THE UNITED STATES, CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, KAIA'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US $100).
Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KAIA AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION IX THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, indemnify, and hold Kaia its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively "indemnify" or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i)your access to or use of the Services, including any and all features, functionality, tools, content and promotions available on and through the Services, (ii) any interactions with any other person as a result of your use of the Services, (iii) your breach of the Terms or the documents incorporated therein, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv) your gross negligence or willful misconduct.
Obligation to Defend. You agree that, at Kaia's option, you will conduct the defense of any such claim or action; provided that (i) Kaia may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Kaia (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No Implied Indemnity. No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND KAIA HAVE AGAINST EACH OTHER ARE RESOLVED.
The Terms shall be governed by and interpreted in accordance with the laws of the state of New York, USA, without regard to conflict of law principles.
Arbitration & Class Action Waiver
All disputes, claims, controversies and matters arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services, including any Website or App (collectively, "Disputes") shall be exclusively settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York, New York, USA, before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. You acknowledge that by agreeing to arbitration as the exclusive forum for the resolution of all Disputes, you are waiving their right to a trial by jury.
All arbitrations shall be conducted and resolved on an individual basis, and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
Jurisdiction and Venue
In the event that arbitration is not available, you and Kaia agree that any and all Disputes will be brought in the federal or state courts located in New York, New York, USA, and each agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Further, Kaia also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
Fees and Costs
The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
Future Amendments to this Section
Both of us agree that if we make any amendment to this "Governing Law & Dispute Resolution" section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Kaia. We will notify you of amendments to this section by posting the amended Terms on www.kaiahealth.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Services immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kaia in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Kaia may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction. Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of this Agreement shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Kaia (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i)"herein," "hereof," "hereunder," "hereto," and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii)"or" connotes any combination of all or any of the items listed, and (iii)"including" (and any of its derivative forms) means "including but not limited to."
If you have any questions or concerns, please contact Kaia at firstname.lastname@example.org.
You can also write to us at:
Kaia Health Software Inc.
134 N. 4th Street
Brooklyn, New York, 11249
The Complaint Assistance Unit of the Division of Consumer Content of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Copyright ©2019 Kaia Health Software Inc. All rights reserved.