These General Terms and Conditions (hereinafter referred to as the "GTC") apply to all services of Kaia Health Software GmbH, Siegfriedstrasse 8, 80803 Munich (hereinafter referred to as "Kaia") that are purchased by the customer from the website www.kaiahealth.com, or other services such as telephone consultations, the mobile app, e-mails, chats or Skype conversations obtained from Kaia.
Any agreements deviating from the GTC shall require text form, as does a waiver of the text form requirement.
In order for the customer to purchase services offered by Kaia, including non-binding and free trial subscriptions, they must log in with a user profile. Registration is required for this purpose.
In order to create a user profile, the customer must be at least 18 years of age, legally competent without restrictions and not under the supervision of a custodian, unless verification of legally valid representation is actively provided. This requirement can be waived in individual cases if the customer is over 16 years of age with the consent of a custodian, following consultation with Kaia.
There shall be no legal claim to receive any services from Kaia, and Kaia is entitled to deny registration without providing grounds.
The contractual relationship between the customer and Kaia shall only come into being based on the acceptance of these GTC, which is required to utilize services offered by Kaia.
Kaia reserves the right to agree to supplementary or deviating conditions for individual services.
Details for the services to be performed for the customer by Kaia are provided in the individual performance specifications for the individual subscriptions and/or services booked by the customer. You will receive the performance specifications, including these GTC, in the version valid at the time of registration or at the time the contract is concluded in the form of a document when you begin your subscription or make a binding booking for a specific service. Please store this document for your long-term use.
The comprehensive training program to treat back pain offered by Kaia is an online-based, CE certified Class I medical device according to the Medical Device Directive 93/42/EWG, and fulfills the regulatory requirements of the Medical Product Law.
All services offered by Kaia, however, should not be considered medical or physician advice, nor psychotherapy. They also should not be considered a replacement for an examination or treatment by a physician or therapist, although they can support such services.
All prices listed on the website http://www.kaiahealth.com/pricing and in the individual performance specification do not include any applicable statutory VAT.
The fee is collected in advance at the time of the booking for the minimum term when the customer purchases a subscription or individual services. If a subscription is automatically extended, or in case of recurring services, the fee shall be charged for the relevant extension period and collected in advance at the start of each extension period.
Kaia accepts the following payment methods:
Vouchers can be redeemed during the booking by entering the relevant voucher code.
Kaia reserves the right not to offer certain payment methods for every purchase, and to require other payment methods, if it has good cause to do so.
If Kaia incurs any costs and/or expenses because a payment is denied and the customer is culpable for this (e.g. because the account does not have a sufficient balance or the credit card limit has already been reached), Kaia is entitled to invoice the customer for the costs and/or expenses incurred in their actual amount.
Kaia reserves the right to assert further claims if the customer falls into default of payment.
Please refer to the individual performance specifications for the individual subscriptions and/or services booked by the customer for specific terms. These will be provided to the customer according to point 3.
Use of Kaia services shall begin with a free and non-binding trial subscription for 7 days from when the user profile is created (registration) and when the user agrees to use the free, non-binding trial subscription.
For customers within Germany, the trial subscription shall not be extended automatically and shall therefore not be transferred into a paid subscription. It is not necessary to cancel the trial subscription. If the customer wants to continue using the services of Kaia beyond the term of the trial subscription, they must expressly conclude a paid subscription. To do so, they must select a specific subscription in the app and authorize the payment process.
For customers outside of Germany, the trial subscription shall automatically be transferred into a paid subscription after 7 days, unless the customer terminates their subscription with Kaia first. The subscription can be terminated with Kaia through the usual Apple process (for iOS users) and in the Kaia app (for Android users).
Please also see the cancellation policy below under point 10 "Right of revocation."
If the customer expressly decides to purchase a paid subscription after or during the trial training period ( within Germany), or if the trial subscription is automatically transferred to a paid subscription ( outside of Germany), then the payment method provided by the customer shall be automatically charged fees as described under point 3 "Payment conditions and payment methods" for the respective booked time frame (typically monthly).
The paid subscription has a basic term of 1 (one) month, and shall be extended automatically for each additional month until the customer cancels the subscription. Cancellation shall be active at the next possible date, depending on the type of subscription, as defined by Apple (for iOS users) and Kaia (for Android users), with a notice period of one day to the end of the month. This applies both to customers within and outside of Germany.
If the subscription is automatically extended in this manner, or in case of other recurring services, the customer hereby already expressly entitles Kaia in advance (without requiring further approval by the customer in question) to collect the payment at the start of the respective extension period using the payment method preferred by the customer (point 4). If it is not possible to collect the fee owed by the customer for any reason, the customer hereby undertakes to pay the fee (likewise exclusively using one of the payment methods indicated under point 4) within 2 (two) weeks from the original payment request by Kaia.
The statutory right of termination for good cause by the customer or Kaia continues to apply. For Kaia, good cause shall exist in particular if the customer does not fulfill the requirements listed under point 6. Good cause shall also exist if the customer violates its obligations under point 8 and does not cease its violations within a reasonable time period despite a request to do so by the provider, or does not correct the interfering condition, or repeats a violation objected to by Kaia.
Persons who are not yet 16 years of age are excluded from using the company's services. Persons who are not yet 18 years of age require consent from a legal custodian to use the company's services.
If the customer believes they have symptoms of a cardiovascular system, respiratory and/or musculoskeletal system disorder, they must see a doctor before using any services offered by Kaia, to exclude any risks of their participation. In general, pay attention to your body's signals: if an exercise causes pain or general discomfort, do not complete it.
Participation is excluded, in any case, if the customer suffers from one or more of the following illnesses and/or has been diagnosed with such illnesses by a doctor or therapist, and/or if such illnesses are suspected by a doctor or therapist.
Kaia works continuously to ensure its services are performed properly, however it accepts no reliability or liability for the uninterrupted availability of internet, mobile app, telephone, Skype and e-mail services, or all other program services or their individual functions, in particular not for delays, interruptions and downtimes due to technical reasons. The customer shall not be entitled to any claims for such reasons.
With respect to appointments set by the customer and Kaia for telephone, chat or Skype consulting, in case of insurmountable obstacles, in particular but not limited to technical or personnel-related difficulties and/or shortfalls, Kaia expressly reserves the right to delay and/or cancel such appointments. In such cases, appointments may be canceled 1 hour before they are scheduled. The customer shall not be entitled to any claims due to such a cancellation and/or delay of the agreed appointment by Kaia.
If the customer wants to delay or cancel an appointment made with Kaia for telephone, chat or Skype consulting, they must inform Kaia of this 24 (twenty-four) hours before the appointment using the relevant form on the website www.kaiahealth.com, or in the mobile app, or in any other form Kaia indicates to the customer in question. Otherwise, the customer shall pay the full price for the agreed service.
The customer hereby undertakes to keep their login details for their user profile, in particular but not exclusively their login password, confidential and to protect such details from access by third parties. The customer shall likewise neither tolerate nor facilitate third parties gaining access to such details. If the password is misused or lost, or if they suspect that it has been misused or lost, the customer must inform Kaia of this promptly.
The customer is obligated to provide correct, complete and truthful information for all of the data requested by Kaia while registering the customer profile and while booking individual program services.
Kaia is intended exclusively for consumers. The contents of services offered by Kaia and the information on the website www.kaiahealth.com may only be used for personal purposes, and may not be used for commercial purposes nor duplicated. Transmitting such content is prohibited without the express approval of Kaia in text form.
For their own safety, customers must complete the exercises shown by Kaia with the proper care, and according to Kaia's instructions.
The customer is obligated to report all medical conditions, illnesses, physical characteristics, etc. to Kaia that are anyway contradictory to and/or not in accordance with the exercises shown by Kaia. If the exercise shown by Kaia includes movements that a physician or therapist has ordered the customer not to carry out, the customer is also obligated to report this to Kaia.
If instructions are provided by Kaia as part of its services (for instance for certain exercises), these instructions must be observed to avoid injuries and/or health risks.
Kaia shall be liable without restriction for damages due to an injury to life, body or health. Kaia shall only be liable for other damages if Kaia, its legal representatives or its agents violate a significant contractual obligation (an obligation that must be fulfilled for the contract to be properly carried out, whose violation endangers achievement of the contractual purpose and in whose fulfillment the user should regularly be able to trust, called a "cardinal obligation") or if the damage was caused by gross negligence or intentional action by Kaia, its statutory representatives or agents.
If a culpable violation of a significant contractual obligation (cardinal obligation) was not carried out in a grossly negligent or intentional manner, Kaia's liability shall be limited to the damages that could reasonably be foreseen by Kaia at the time the contract was concluded.
The limitations of liability in sections 8 b) and 8 c) shall apply to both contractual and extra-contractual claims, and shall apply to both the statutory representatives and agents of Kaia if claims are made directly against them.
Liability under the law, including the Product Liability Act, shall remain unaffected by the above regulations in every case.
The customer shall have the following right to withdraw when concluding a usage agreement or a contract for a one-time additional service or subscription.
The customer has the right to withdraw the contract within fourteen days without providing grounds. The withdrawal period shall be fourteen days from the date on which the contract was concluded.
The withdrawal must be addressed to:Kaia Health Software GmbH
with a clear declaration (e.g. a letter sent by mail, fax or e-mail) stating their decision to withdraw the contract. The enclosed sample withdrawal form may be used, although this is not required.
If the customer withdraws the contract, all payments received from the customer, including delivery costs (with the exception of additional costs due to a different kind of delivery being selected than the least expensive standard delivery offered), shall be refunded promptly, and at the latest within fourteen days from the date on which Kaia received the notice of withdrawal notice. The same payment method shall be used for this repayment that the customer used in the original transaction, unless otherwise expressly agreed with the customer; in no case shall the customer be charged any fees related to the repayment.
If the customer has requested that the services should begin during the withdrawal period, they must pay Kaia an appropriate amount representing the percentage owed up to the time at which the customer informed Kaia they would be exercising their right to revoke this contract, from the total scope of services set forth in the contract.
According to Sec. 356 para. 5 BGB (German Civil Code), the right of withdrawal shall lapse prematurely for a contract for the delivery of digital content not on a physical data storage media, if the company has begun executing the contract, after the customer
The following form can be used for the withdrawal:
I/we (*) hereby withdraw the contract concluded by me/us (*) for purchase of the following goods (*)/performance of the following services (*)
ordered/received on (*)
Name of the consumer(s)
The form should be delivered in writing or by e-mail to the following address:
Kaia Health Software GmbH
Siegfriedstrasse 8, 80803 Munich
In addition to these GTC, the Kaia "Data protection provisions" also apply, which the customer can access at any time through the Kaia website https://www.kaiahealth.com/terms/privacy.
All texts, software, images, graphics, videos, audio files, etc. provided on these pages, the Kaia mobile app, Kaia e-mails, during chat, Skype and telephone consulting by Kaia and in relation to all other services provided by Kaia are copyright protected. Any unauthorized use of such materials shall require express approval by Kaia in writing.
Kaia reserves the right to amend and adapt these GTC at any time without providing grounds, with future effect.
The amended GTC shall be sent to the customer in advance, to the last e-mail address provided by the customer in their user profile, or posted in a notification on the website. If the user does not object to the amended GTC within 2 (two) weeks, they shall be considered accepted and the amended GTC shall go into effect. The date on which the objection is sent is considered decisive for complying with this term.
If the contract is revoked within the term, Kaia can terminate the contractual relationship with the customer without notice, whereby payments already made shall be reimbursed on a pro rata temporis basis in relation to the remaining term. If Kaia does not terminate the prior contractual relationship following an effective revocation, the previous GTC shall continue to apply without change with that customer.
The laws of the Federal Republic of Germany shall apply, excluding the UN Sales Convention. If the customer has submitted the order as a consumer, and their habitual residence was in another country at the time the order was placed, the legal regulations of this country shall continue to apply, regardless of the choice of law in clause 1.
If the customer is a merchant and is domiciled in Germany at the time of the order, the exclusive place of jurisdiction shall be the domicile of Kaia in Munich. Otherwise, the applicable statutory provisions apply to determine the local and international jurisdiction.
If any provision of this contract is invalid or unenforceable or becomes invalid or unenforceable after the contract is concluded, this shall not affect the validity of the remainder of the contract. A valid or enforceable regulation with an effect coming as close as possible to the economic goal Kaia and the customer intended to achieve with the invalid or unenforceable provision shall take the place of the invalid or unenforceable provision. The above provisions shall apply accordingly to any gaps.
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING OUR PLATFORM.
IF YOU AGREE WITH THESE TERMS, INDICATE YOUR AGREEMENT BY CLICKING THE “I AGREE” CHECKBOX BELOW.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
VII. NO ENDORSEMENT
VIII. THIRD PARTY TERMS
Welcome to the Kaia Platform! This Platform enables Users to input information about their back pain symptoms, and receive exercise suggestions based on those symptoms. You can use the Kaia Platform to track your exercise schedule and the progress of your symptoms. As you do, you will receive updated suggestions as your symptoms evolve.
THE KAIA PLATFORM DOES NOT PROVIDE MEDICAL ADVICE.
THE INFORMATION AND OTHER CONTENT AVAILABLE ON OR THROUGH THE PLATFORM 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 PLATFORM!
This Platform is not appropriate for certain people. For example:
RELIANCE ON ANY INFORMATION OR OTHER CONTENT AVAILABLE ON OR THROUGH THE PLATFORM OR OTHERWISE PROVIDED BY KAIA IS SOLELY AT YOUR OWN RISK.
Platform Rules and Supplemental Terms
YOUR ACCESS TO AND USE OF THE PLATFORM AND CONTENT IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH ALL APPLICABLE TERMS.
Amendment of 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. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform or Content 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 Platform.
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.
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 Platform, and may subject you to civil and criminal penalties.
The Platform is operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Content, Website, App, or any of the features, functionality, tools, content thereof, is illegal. If you access the Platform 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.
Modifications and Updates to the Platform and Content
Kaia reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Content, in whole or in part, including any Website or App, or 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 any of the Content, 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:
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 email@example.com 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.
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 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 verifies your new payment information. Any change in the chosen payment method will go into effect for the next billing period.
If Kaia 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.
Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform or Content 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.
Users may not:
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 Platform or Content 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 Platform and Content (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 Platform and Content. 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.
The Platform and Content, 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 Platform and Content, 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 Platform or Content.
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 Platform and the Content, 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 Content 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 Platform or Content 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 Platform ("Feedback"). You may submit Feedback by e-mailing us, at firstname.lastname@example.org. 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.
VII. NO ENDORSEMENTS
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 Platform.
The Platform 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.
VIII. THIRD PARTY TERMS
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:
Warranties by Users
You represent and warrant to Kaia that:
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND CONTENT 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 PLATFORM OR CONTENT, OR THAT USE OF THE PLATFORM OR CONTENT 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:
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 Platform or Content, including any and all features, functionality, tools, content and promotions available on and through the Platform, (ii) any interactions with any other person as a result of your use of the Platform or Content, (iii)your breach of the Terms, 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, notwithstanding our election that you to conduct the defense, (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.
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 New York State, 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 Platform or Content, 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 Platform 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 email@example.com.
You can also write to us at:
Kaia Health Inc.
134 N 4th Street, 2nd Floor
Brooklyn NY 11249
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of this Platform is:
Kaia Health Inc.
134 N 4th Street, 2nd Floor
Brooklyn NY 11249
Complaints regarding the Platform or Content or requests to receive further information regarding use of the Platform or Content may be sent to the above address or to firstname.lastname@example.org.
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 ©2017 Kaia Health Inc., a Delaware company with offices located 134 N 4th Street, 2nd Floor, Brooklyn NY 11249 and its licensors. All rights reserved.