EFFECTIVE: 15 September 2023
Kinvent’s website: https://physio.kinvent.com/ (the “Website”), as well as any application authored, distributed, and published by Kinvent enabling the use of Kinvent’s Products (available for iOS and/or Android) (the “App”) are owned and operated by Kinvent, our subsidiaries or affiliates. The Website and the App shall be referred to collectively, as the “Site”.
This Agreement is important and contains terms and conditions that govern your use of the website, the Site and all sales made by Kinvent (on the Site and/or through third party sales representatives who are acting on behalf of Kinvent). Because such terms affect your legal rights, please read it carefully.
The Site and any other material related to products offered for sale by Kinvent (the “Products”), such as instruction manuals and brochures (collectively, the “Materials”) may be used for informational and purchasing purposes only. By accessing or using the Site and/or purchasing our Products, you agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated herein by reference. If you do not agree to abide by any of the terms herein, in any manner, do not use the Site, including but not limited to, uploading, or downloading information or material onto the Site and/or make any purchases of Kinvent’s Products.
The Agreement applies to all Kinvent’s users (“User” and/or “Customers” and/or “you”), including but not limited to:
- Consumers, i.e., individuals acting for personal purposes other than their business, industrial, craft, and/or as independent contractors; and
- Professionals, i.e., public or private legal entities or individuals acting in the scope of their business, industrial, craft, independent contractors, acting on behalf of a business.
We reserve the right, at our sole discretion, to change or modify portions of this Agreement at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. You may read a current, effective copy of this Agreement at any time by selecting the “Terms” link on the Site. We will also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. Your continued use of the Site and/or repeated purchase of Products after any such changes constitutes your acceptance of the new Agreement. You should periodically visit this page to review the current Agreement, so you are aware of any revision to which you are bound. If you do not agree to abide by this or any future Agreement, do not use or access (or continue to use or access) the Site and do not make any purchases from Kinvent.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2.1 If you are below the age of consent under applicable law in the state in which you reside, then your parent or legal guardian must read and accept this Agreement in your name and on your behalf.
2.2 You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Site. We may, in our sole discretion, refuse to offer the Products to any person or entity and change our eligibility criteria at any time.
2.3 We continually test new features, functionalities, services, user interfaces and Products that we are considering offering for sale, and/or incorporating into or providing through our Site. We reserve the right to include or exclude you from these tests without notice.
2.4 You are solely responsible for ensuring that your use of the Site and/or purchase of the Products comply with all laws, rules, and regulations applicable to you. The right to access the Site shall be revoked where this Agreement, use of the Site and/or the Products are prohibited or to the extent offering, sale, or provision of the Products conflicts with any applicable law, rule or regulation.
- Products Details.
3.1 Any reference to a Kinvent’s Product on the Site does not imply that such Product is or will be available in your country and/or state where it may be subject to different regulations and conditions of use. Such reference does not imply any intention on our part to sell this product, application, or service in your country and/or state and you should always rely on Product information especially created for your country and/or state. The Site contains information about Products that may or may not be available in any particular country or region of the world, may be available under different trademarks in different countries, and where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You should not construct anything on linked sites as a promotion or solicitation for any product or for the use of any product that is not authorized by the laws and regulations of the country and/or state where you are located.
3.2 The information published on the Site and/or Materials may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have placed your order). These errors, inaccuracies or omissions may be related to Product description, pricing, and availability. If we discover that pricing information posted on our Site and/or Materials is incorrect, we reserve the right not to fill Orders at the incorrect price. We apologize for any inconvenience this may cause.
- Registration; Subscription; and License.
4.2 Some features of the App are only available by taking out a subscription with Kinvent (“Subscription”), based on the price applicable at the time the subscription is made (“License Fee”). The Subscription packages and License Fee (based on the number of Users, in particular) are described in Kinvent’s Materials.
4.3 The License Fee is valid for the relevant Subscription Term. Kinvent may revise the License Fee at any time. In such a case, the new fee amount will apply to Subscriptions renewals made after the date on which the new License Fee became effective.
4.4 If you purchase a Subscription from a Kinvent sales representative (Product, pack, or license invoice) and subsequently purchase a duplicate Subscription on our Website and/or App, the only valid License will be the first and the duplicate Subscription will be canceled and refunded.
- Use of the Website, the App and Materials.
5.1 The Website, the App and Materials contain material, including but not limited to software, text, graphics, and images (collectively referred to as the “Content”). We either own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Site is or will continue to be accurate. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, patent, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. You have no right to access the source code of the App, or to correct the App, such rights being reserved solely to Kinvent. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
5.2 The trademarks, service marks, and logos of Kinvent, whether (collectively, the “Kinvent Trademarks”) used and displayed in connection with the Products are registered and unregistered trademarks or service marks of Kinvent. Other company, product, and service names located on the Website, App, and/or Materials or otherwise used in connection with the Products may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Kinvent Trademarks, the “Trademarks”). Nothing on the Website and/or App, on the Products or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Website, on the App and/or Materials or otherwise used in connection with the Products without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks (this shall exclude any negative feedback on the Products). Use of any Kinvent Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Kinvent Trademark shall insure to our benefit.
5.3 You may not use the Website and/or App and/or Materials for any unlawful or prohibited purpose or in any manner that is inconsistent with the limited privilege granted herein. In particular, you agree not to: (a) take any action that imposes an unreasonable load on the Site and/or App’s infrastructure; (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Website and/ or App or any activity being conducted on the Website and/ or App; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Website and/ or App; (d) delete or alter any material we or any other person or entity posts on the Website and/ or App; (e) otherwise take any action in violation of our guidelines and policies; (f) using the Website and/ or App to invade the privacy of, obtain the identity of, or obtain any personal information about any other user of the Website and/ or App; or (g) modify, erase, or damage any information contained on the computer of any user connected to the Website and/ or App.
5.4 In using the Website and/ or App, you agree not to: (a) disrupt or interfere with the security of, or otherwise abuse Website and/ or App, or any services, system resources, accounts, servers or networks connected to or accessible through the Website and/ or App or affiliated or linked sites; (b) disrupt or interfere with any other user’s enjoyment of the Website and/ or App or affiliated or linked sites; (c) upload, post, or otherwise transmit through or on Website and/ or App any viruses or other harmful, disruptive or destructive files; (d) transmit through or on the Website and/ or App spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings; (e) attempt to obtain unauthorized access to the Website and/ or App or portions of the Website and/ or App which are restricted from general access. In addition, as a User and/or Customer, you agree that you will comply with all applicable local, state, national and international laws and regulations that relate to your use of the Products and/or activities on the Website and/ or App.
- Third-Party Sites.
6.1 The Site may contain links to third party websites, services, or other resources on the Internet (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You acknowledge and agree that we shall not be responsible or liable, directly, or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any External Sites.
- User Content.
7.1 Any content or other materials you provide to or upload through the Site and/or through the Products (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know if false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
7.2 By uploading any User Content on the Site (i.e., this does not apply to User Content you may upload on Products), you hereby grant and will grant Kinvent and its affiliated companies, successors and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the products, in any form, medium or technology now known or later developed, and including after your termination of your Account. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
7.3 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Products (collectively, “Submissions”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
7.4 You acknowledge and agree that we may preserve User Content uploaded on the Site only and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Kinvent, our users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
7.5 YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE A CUSTOMER AND/OR USER AND ARE A COVERED ENTITY OR BUSINESS ASSOCIATE UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ALL APPLICABLE PROVISIONS OF HIPAA AND ITS IMPLEMENTING REGULATIONS, INCLUDING ANY INFORMATION RELATING TO USER CONTENT AND YOUR PATIENTS. KINVENT DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE USER AND/OR CUSTOMER’S COMPLIANCE WITH HIPAA OR ANY RELATED OBLIGATIONS. THE USER AND/OR CUSTOMER SHALL INDEMNIFY AND HOLD KINVENT HARMLESS FROM ANY CLAIMS, DAMAGES, LOSSES, OR EXPENSES ARISING OUT OF OR RELATED TO THE USER AND/OR CUSTOMER’S FAILURE TO COMPLY WITH HIPAA OR ANY BREACH OF THEIR OBLIGATIONS UNDER HIPAA.
- IP Infringement.
8.1 We respect the intellectual property rights of others and require that the people who use our Site and products do the same. If you are a copyright owner and believe that any content posted on the Site infringes upon your copyrights, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing and information reasonably sufficient to permit location of the material;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our DMCA designated copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
9.1 Kinvent may terminate, change, suspend or discontinue any aspect of the Site, including the availability of any features, at any time. Kinvent may remove, modify, or otherwise change any Content, including that of third parties, on or from the Site. Kinvent may impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability. Kinvent reserves the right to terminate your authorization to use the Site and to delete one or more of your related accounts immediately at any time if you breach or threaten to breach any of the terms herein. Kinvent may further terminate the authorization and rights provided herein and your use of the Site at any time in its sole discretion and upon such termination, you shall immediately destroy all materials that you have downloaded from the Site.
9.2 As to any Subscription, the initial term of the Subscription is indicated in your Account and/or on the Order. At the end of that term, the subscription shall be automatically renewed on each anniversary date for successive periods of one (1) year, unless terminated earlier with one (1) month’s prior notice (the “Term”). You may terminate your Subscription by certified mail with a return receipt sent to Kinvent Pramex International – USA, 535 Mission Street, 14th FL., San Francisco, CA 94105 or by email sent to firstname.lastname@example.org, or by contacting Kinvent using the contact form in the “Support” menu of the App. A subscription may not be terminated unless all conditions herein are met, including the notice period and means by which to notify us.
- Securities Disclaimer.
10.1 Kinvent Site may contain “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995. These statements, at the time they were made, were based on then-current expectations of future events. If any of those underlying assumptions prove or have proven to be inaccurate or unknown or if risks or uncertainties materialize or have materialized, actual results could vary or already may have varied materially from Kinvent expectations and projections in these statements.
These risks and uncertainties include general industry conditions and competition: economic conditions such as interest rate and currency exchange rate fluctuations, technological advances and patents attained by competitors, challenges inherent in new product development including obtaining regulatory approvals, domestic and foreign health care reforms and governmental laws and regulations and trends toward health care cost containment. Kinvent assumes no obligation to update any forward-looking statements as a result of new information or future events or developments.
- Payments; Ordering; and Billing.
11.1 Prior to submitting the Order on the Website or App, you are required to verify the accuracy of the information provided and make the necessary corrections. The Order is submitted when you click the “Place Order” button. After placing an Order, within twenty-four (24) hours, you will receive an automatic e-mail confirmation from us acknowledging that we have received your Order. Please note that clicking the “Place Order” button does not mean that your Order has been accepted, the purchase completed, and/or that the Product is available. Your Order constitutes an offer to us to buy a Product which may not be accepted. Upon receipt, the Order will be submitted to Kinvent for processing and may not be changed or canceled by you except as expressly provided in this Agreement or as required by applicable law. All Orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you a second e-mail that confirms that the Product has been dispatched and which contains the relevant tracking number (the “Order Confirmation”). The Order Confirmation will also list each Product being dispatched and the final price (inclusive of taxes, shipping, and handling charges). Kinvent files for its own records evidence of all transactions between Kinvent and its customers. Download and file for your own records this Agreement and the Order Confirmation. In the event of a dispute between Kinvent and you relating to a transaction, you agree that the data recorded by Kinvent shall be treated as evidence of the details of the transaction.
11.4 You agree to have sufficient funds or credit available upon placement of any such Order to ensure that the purchase price will be collectible by us. We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any Orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email.
11.5 The prices of Kinvent Products are indicated in U.S. Dollars. Unless otherwise specified, prices quoted are exclusive of (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value-added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping, or carriage of the Products as such costs are specified by us when you submit your Order. These costs will be specified in detail when you submit your Order.
11.6 On rare occasions an error in our tax database may cause the sales tax charge to be incorrect. If this happens, at any time up to two (2) years from your date of purchase you may contact us for a refund of tax overcharges. This right to a refund is your exclusive remedy for sales tax errors.
11.7 All Orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. We reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
11.8 Kinvent reserves the right to modify the price of Products offered at any time without prior notice to you. You will be charged the prices displayed on the Site and/or Materials at the time the order was confirmed by you by clicking on the “Place Order” button. We occasionally run promotions or provide limited time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
11.9 You are responsible for the costs incurred in connection with placing an Order with us (cost of internet access, telephone costs).
11.10 Kinvent does not warrant that information on the Site and/or Materials (including without limitation description of the Product, colors or photographs) is accurate, complete, reliable, current or error-free. The images of the products on our Site are for illustrative purposes only. Although we have made every effort to display the colors accurately, we cannot guarantee that a device’s display of the colors accurately reflects the color of the Product. Your Product may vary slightly from those images. Accordingly, Kinvent shall not be liable for any error or inaccuracy in the photographs or graphical representations of Kinvent Products displayed on the Site. Accordingly, if a Product is not as described, your sole remedy is to return or exchange the item, unless otherwise specified in writing by us. If you have any questions about the Product, you may contact customer service by emailing email@example.com.
12.1 Kinvent reserves the right to use of its preferred carrier. Delivery dates are indicated as accurately as possible but are subject to variations due to availability and transportation methods. Late deliveries do not render Kinvent accountable for the payment of damages, nor permit the cancellation in whole or in part of pending Orders.
12.2 Your Order will be fulfilled by the delivery date set out in the Order Confirmation or, if no delivery date is specified, then within 30 days after the date of the Order Confirmation, unless there are exceptional circumstances and except in the case of pre-orders.
12.3 We reserve the right not to deliver to any country that is prohibited by applicable export laws.
12.4 Your Order may be delivered in several separate packages. Kinvent will not be held liable if the packages are delivered by the carrier on different dates (or over several days). In such cases, acceptance of the first package delivered is deemed as acceptance of the entire Order.
12.5 The Product(s) ordered will be at your risk from the time you receive the Product(s). Ownership of the Product(s) ordered will also pass to you upon your receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received.
13.1 For international delivery, upon arrival in your Country, the Product(s) may be subject to customs fees (taxes, duties, processing fees, brokerage fees, etc.), which are the responsibility of the Customer receiving the Order. These fees are not under our control, and we do not pay for any custom fees or cannot be held liable if you fail to pay those fees. We do not assume responsibility for any import costs that might be payable when goods cross borders, such as duties, import taxes, or brokerage/disbursement fees. For this reason, we recommend you verify with your local Customs office before you place an order. We are unable to estimate customs fees, taxes, duties, etc. so please contact your local authorities or Customs office for detailed information.
- Return or Exchange.
14.2 It is the Customer’s responsibility to check that the Products are in good condition at the time of delivery. This includes the quality, quantities and references of the Products and their compliance with the order.
14.3. Upon receiving the returned Product(s) from you, we will process any refund due to you as soon as possible. You will be refunded in full to your original form of payment; however, we will not refund your cost of returning the Product(s) to us. You will be responsible for paying for your own shipping costs for returning the Product(s). If you received any promotional or other discount when you paid, any refund will only reflect the amount you actually paid.
14.4 Your replacement Product will typically be sent to the shipping address indicated on your original Order within five to ten (5 to 10) business days after your returned Product has been received and processed. You will then receive a separate e-mail with the new Order information and tracking number for the exchange Product. It will be sent to the shipping address indicated on your original order. You may request to send the replacement Product to a different shipping address by emailing firstname.lastname@example.org.
- Limitation of Liability and Disclaimer of Warranties.
15.1 THE SITE AND ITS CONTENT IS PROVIDED AS A CONVENIENCE TO YOU TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AND EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, KINVENT, OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “KINVENT PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT ON THE SITE OR THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE SITE’S ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE KINVENT PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR THE SITE OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SITE, ITS CONTENT, THE PRODUCTS AND MATERIALS AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WHETHER IN ANY ACTION IN WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR FUNDAMENTAL BREACH), OR OTHERWISE, SHALL THE KINVENT PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SITE OR ANY CONTENT CONTAINED ON THE SITE, OR, EXCEPT AS OTHERWISE PROVIDED UNDER APPLICABLE LAWS AND REGULATIONS REGARDING THE SECURITY OF PERSONAL DATA, RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED ON OR THROUGH THE SITE AND/OR PRODUCTS, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, INTERRUPTION OF SERVICE, LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK, EVEN IF KINVENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE LIABILITY OF KINVENT WOULD IN SUCH CASE BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15.2 YOU ACKNOWLEDGE THAT KINVENT DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH ANY WEBSITES INCLUDING THE SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, KINVENT AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY LESSON, MATERIAL, ADVICE, OPINION, SUMMARY, STATEMENT OR OTHER CONTENT OR OF ANY APPLICATIONS, PRODUCTS OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH ANY THIRD-PARTY OR THE SITE.
15.3 THE KINVENT PARTIES DO NOT WARRANT THAT THE SITE AND/OR PRODUCTS WILL OPERATE ERROR FREE OR THAT THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO KINVENT PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
15.4 EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, THE SITE AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE KINVENT PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
15.5 IN NO EVENT SHALL ANY KINVENT PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH KINVENT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $500.00.
15.6 The above disclaimer, including the disclaimer HIPAA compliance in section 7.5, applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Except as otherwise provided under applicable laws and regulations regarding the security of personal data, Kinvent disclaims any warranty or representation that confidentiality of information transmitted through the Site and/or Products will be maintained.
No advice or information, whether oral or written, obtained by you from Kinvent or third parties shall create any warranty. Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE KINVENT PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the Kinvent Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any User Content or Submissions you provide, or your access to, use or misuse of the Content or the Products. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to email@example.com. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
- ARBITRATION CLAUSE AND CLASS ACTION WAIVER.
PLEASE READ THIS DISPUTE RESOLUTION SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. THIS SECTION CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
17.1 If Kinvent cannot resolve any dispute with you regarding the Site and/or Products, any transaction conducted on the Site or these terms, both you and Kinvent agree that any such dispute will be resolved through binding individual arbitration. Both you and Kinvent understand and agree to waive the right to sue or go to court to assert or defend our respective rights. However, either you or Kinvent may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. The term “dispute” means any dispute, action, claim, or other controversy between you and Kinvent, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
17.2 Informal Dispute Resolution. Either party asserting a dispute shall first try in good faith to resolve it by providing written notice to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and Kinvent agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
17.3 How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by these Arbitration Provisions. To file an arbitration demand and review the AAA Rules, you can go to the AAA’s website www.adr.org, or call the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the dispute, you and Kinvent will mutually agree to, or the court shall select, another arbitration provider. The arbitration will be conducted by telephone, videoconference, or in-person in the county of your residence (as determined by your billing address on file in your Kinvent account) as mutually agreed upon by you and Kinvent. If you live outside the United States, any arbitration will take place in New York, NY. Unless the arbitrator finds some or all of your claims to be frivolous, without merit or otherwise non-reimbursable, Kinvent will pay all filing, administrative, arbitrator and hearing costs up to the amount of $10,000. In determining whether an action is frivolous, the arbitrator may consider whether Kinvent offered you a full refund of the sum you paid for any items you purchased, or otherwise offered full relief to you in relation to your individual claim.
17.4 Waiver of Right to Bring Class Action and Representative Claims. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and Kinvent also agree waive the right to assert or participate in any class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, and any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
- User Must Comply with Applicable Laws.
You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national and international laws and regulations, including HIPAA laws.
- Transfer and Processing of Personal Data.
20.1 This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. Any dispute between you and Kinvent that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting in the City of New York in the State of New York. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. Any information you submit to or provide through the Site might be publicly accessible, and you should protect important and private information. We are not liable for protection of privacy of email or other information transferred through the Internet or any other network that you may use. Products, including any intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. Any term herein may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby. Ambiguities, if any, shall not be construed against any party, irrespective of which party may be deemed to have authored the ambiguous provision.
Kinvent’s Customer service can be contacted by email at firstname.lastname@example.org for support requests and at email@example.com for commercial requests. Kinvent undertakes to reply within two (2) working days of receipt of the inquiry or complaint (except during annual closing periods or weekends).