Effective Date: 18 December, 2014
Contact us: firstname.lastname@example.org
Therapy Holdings, Inc. (the “Company”) collects biometric data from wearable fitness devices (the “Hardware”) purchased from the Company or from its distributors, transfers that data to a mobile app (the “App”) or its website (the “Site”) when the device is connected to a smart phone, other mobile device or a personal computer, uploads that data to the Company’s servers, and displays reports resulting from processing that data back to the user. (In this document, we refer to the foregoing collectively as the “Services”.) The Company’s Apps may be downloaded from Apple’s App Store and from Google Play.
These End-User Terms of Service (the “Terms” or, “Agreement“) constitute an agreement made by and between you, a user of the Services (“You“, or “Your“) and the Company, with respect to your use of the Services.
Please read these Terms carefully before accepting, and/or before downloading or installing the Apps or using the Services. By clicking on the “I accept” (or similar consent) button or downloading, installing or using all or any portion of the Services, you are accepting all of the Terms and conditions of this agreement.
If you do not agree to all of these terms and conditions, do not click to download, install or use the Apps or otherwise use the System.
1.1. “Apps” means the Company’s mobile applications.
1.2. “Effective Date” means the date on which you downloaded an App or first begin using the Services, whichever occurs first.
1.3. “Hardware” – means a wearable fitness device purchased from the Company or from its distributors or resellers and which connects to your mobile device or computer, collecting exercise and workout data including muscle contraction strength and speed and device motion.
1.4. “Services” means the services provided by the Company through the use of the Hardware, a mobile device or computer and the Company’s processing of biometric data submitted by You. Therapy Holdings reserves the right to add, change, remove, and/or modify the Services and any part thereof, including modifications to functionality, look and feel, tools and the presentation, as well as any Hardware requirements.
1.5. “Site” means the Company’s website located at http://www.kgoal.com.
The Services are provided free of charge. The Company reserves the right to charge You for the use of the Services at any time in the future at its sole discretion.
3. Grant of License
Subject to all of the terms and conditions of this Agreement, when you indicate that you accept these terms or first use the Services, whichever occurs first You are granted, as of the Effective Date, a non-transferable, non-sub licensable, non-exclusive, limited, personal and revocable license to (i) download the Apps and use the Apps, the Site and the Services for Your own private use, in accordance to the terms and conditions set forth in this Agreement.
4. Restrictions on Use and License
You agree not to, or attempt to (or permit other third parties to): (i) decipher, reverse engineer, de-compile, disassemble or otherwise disintegrate or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Apps or the Company’s online platform by any means whatsoever; (ii) copy, adapt, translate, modify, change, create any derivative work of the Apps or the Site or any portion thereof; (iii) remove any copyright or other proprietary notices from the Apps or the Site or any part thereof; (iv) test or use the Apps or the Site in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public; (v) disclose your user name and password to others (vi) allow anyone other than You, directly or indirectly, to use the Services with your user name and password; (vii) make copies of the Apps, the Company’s web pages or any portions thereof; or (viii) use the Services in a manner that is not in compliance with the Company’s specific instructions. You are aware and agree that the Company is entitled, at its sole discretion, and without prior notice, to restrict and/or block your use of the Services, in the event that your use of the Services or the Site does not comply with the provisions of these Terms, without any remedy to you.
5. Title and Intellectual Property
All rights title and interest in and to the Hardware, the Apps, the Site, the Services and the Company’s online platform, including any revisions, corrections, modifications, enhancements and/or updates or upgrades thereto and including any and all associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, patents etc., whether registered or not), are and shall remain the Company’s sole property protected under any applicable laws and treaties, worldwide. This Agreement does not convey to You an interest in or to the Hardware, the Apps, the Site, the Services and the Company’s online platform or any portion thereof, but only a limited right of use of them, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s intellectual Property rights under applicable law.
6. Third Party Services
7. Use of Information
7.1. Private Information. You may be required to provide certain details about yourself including personal information for the purpose of opening an account and using the Services. You agree and undertake that all such information provided by You through the Service is correct and complete and You undertake to inform the Company immediately of any changes to any such information.
7.3. Confidentiality of Access Information. In order to use the Services, You must first establish an account with the Company through the Apps or via the Site. In the process of establishing the account, You will establish a user name and password that You will use to access the account and use the Services. You hereby warrant and undertake that You will keep any access information safe, secure and confidential at all times; and You shall not disclose or share such access information with any third Party. You hereby release the Company from any and all liability for any losses and/or damages caused by your breach of the foregoing undertaking, and You assume and undertake full liability for any such losses and/or damages.
8. Access to Your Account
From time to time, the Company’s technical and customer support teams may access Your account to provide the Services, to maintain the Apps, the Site or Your data, and to fulfill other customer support activities. Such access may be per Your specific request and/or as a proactive action by the Company to ensure the proper operation of the Services provided to You.
9. Term and Termination
9.1. Term and Termination. This Agreement is effective as of the Effective Date and will continue until You cease using the Services or Your access is terminated by the Company, whichever occurs first. Upon the end of the Term, Your license to use the Services shall automatically terminate. The Company reserves the right to terminate Your use of the Services and the access to Your account for any reason or no reason, including without limitation, upon any violation by You of any of the provisions of this Agreement or violations of relevant laws or regulations.
9.2. Effects of Termination. Upon expiration or termination of this Agreement for any reason, Your access to your account shall be blocked, and you will not be able to use the Apps, the Site or the Services. The provisions of paragraphs 1, 4, 5, 6 9, 10, 11, and 12 will survive any termination of this Agreement.
10. Warranty, Disclaimers and Limitations
10.1. THE COMPANY’S WARRANTY PERTAINING TO THE HARDWARE IS CONTAINED IN THE USER DOCUMENTATION FOR THE HARDWARE. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT ALLOWABLE BY LAW. THIS INCLUDES WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.2. WITHOUT LIMITATION, THE COMPANY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, MALFUNCTIONS AND INACCURACIES IN THE DATA COLLECTED FROM YOU AND THE REPORTS PROVIDED BY THE COMPANY TO YOU RESULTING FROM PROCESSING THAT DATA, (II) PERSONAL INJURY, ANY HEALTH CONDITION, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES (III) ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR DATA THAT HAS BEEN TRANSFERRED TO THE COMPANY’S APPS, SITE OR SERVERS, INCLUDING WITHOUT LIMITATION ANY PERSONALLY IDENTIFIABLE INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPS OR THE SITE BY ANY THIRD PARTY OR YOU.
10.3. THE USE OF THE APPS, THE SITE AND THE SERVICES IS FOR GENERAL INDICATIVE PURPOSES AND IT IS NOT INTENDED TO PROVIDE ANY MEDICAL DIAGNOSIS, OR TO SERVE AS AN AID FOR MEDICAL DIAGNOSIS, OR TO PROVIDE ANY MEDICAL ADVICE, OR TO RECOMMEND ON ANY TREATMENT OR OTHER MEDICAL PROCEDURE. ANY INFORMATION PROVIDED TO YOU THROUGH THE APPS, THE SITE OR THE SERVICES, EVEN IF IN THE FORM OF ADVICE OR RECOMMENDATION, SHOULD NOT BE REGARDED AS MEDICAL OR OTHERWISE QUALIFIED ADVICE, AND YOU SHOULD IN ANY CASE CONSULT WITH A QUALIFIED PHYSICIAN OR OTHER PROFESSIONAL CONSULTANT AS THE CASE MAY BE. IN NO EVENT SHALL THE INFORMATION GENERATED BY THE APPS, THE SITE OR THE SERVICES SUBSTITUTE FOR MEDICAL DIAGNOSIS AND TREATMENT BY CERTIFIED AND QUALIFIED PHYSICIANS OR OTHER PROFESSIONALS ACCORDING TO APPLICABLE LAW. ANY USE OR RELIANCE ON THE INFORMATION GENERATED BY THE SERVICES IS MADE AT YOUR OWN RISK AND YOU HEREBY RELEASE THE COMPANY FROM ANY WARRANTY OR LIABILITY RELATED THERETO.
11. Limitation of Liability
11.1. BY USING THE SERVICES, YOU AGREE THAT YOU FOREVER AND IRREVOCABLY WAIVE ALL CAUSES OF ACTION AND ALL CLAIMS FOR ANY DIRECT OR INDIRECT DAMAGES CAUSED TO YOU DUE TO YOUR USE AND RELIANCE ON THE SERVICES PROVIDED BY THE COMPANY OR DUE TO ANY MEDICAL DIAGNOSIS OR TREATMENT MADE OR PROVIDED TO YOU BASED ON THE INFORMATION GENERATED FROM THE SERVICES. YOU HEREBY AGREE THAT IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND THE COMPANY.
11.2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT YOU PAID TO PURCHASE THE HARDWARE. YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT THE COMPANY WOULD NOT PROVIDE YOU WITH THIS LICENSE TO USE THE SERVICES EXCEPT UNDER THE TERMS OF THIS AGREEMENT.
12.1. The Company may make changes to these Terms from time to time. When these changes are made, the Company will make a new copy of the Terms available at www.kgoal.com/terms. You understand and agree that if You use the Apps, the Site or the Services after the date on which the Terms have changed, Your use shall be construed as acceptance of the updated Terms. If there is any contradiction between the Terms of this Agreement and the updated Terms published by the Company from time to time, then the updated Terms shall take precedence. This English version of the Terms shall supersede in any case of conflict between these Terms and any translation thereof. These Terms or the updated version thereof shall constitute the entire agreement between You and the Company with respect to the Services.
12.2. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3. Any notice or report hereunder shall be in writing to the notice address provided by either party to the other and shall be deemed given: (a) upon personal delivery to the recipient by hand delivery or a nationally recognized overnight courier (e.g., Federal Express); (b) when sent by confirmed facsimile if sent during normal business hours of the recipient, or if not, then on the next business day; (c) five (5) days after having been sent by registered or certified airmail, return receipt requested, postage prepaid; or (d) one (1) business day after having been sent by email message
12.4. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
12.5. This version of the Company’s Terms of Service was first posted on the Site on 19 December, 2014.
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