Last Revised: April 1st, 2013
INTRODUCTION AND BACKGROUND INFORMATION
Welcome to Kindara Inc.'s (“Kindara's”) web site located at http://www.kindara.com (the “Website”) and/or the mobile software application, “Kindara” (the “App”) The Website and the App, and all information provided on and/or through the Website and the App are, collectively, the “Service.” The Service allows women and men to track health and/or fertility information to assist in general and reproductive health knowledge and/or pregnancy planning and/or avoiding pregnancy.
THE SERVICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR THE PROFESSIONAL SERVICES OF A LICENSED PHYSICIAN OR OTHER HEALTH CARE PROVIDER. KINDARA DOES NOT PROVIDE MEDICAL ADVICE AND IS NOT A LICENSED HEALTH CARE PROVIDER.
EACH USER OF THE SERVICE (A “USER”) USES THE SERVICE AT THE USER’S SOLE RISK. THIS MEANS THAT:
- A USER MAY GET PREGNANT WHEN USING THE SERVICE EVEN IF THE USER’S PURPOSE FOR USING THE SERVICE IS TO AVOID GETTING PREGNANT.
- THERE IS NO GUARANTEE THAT USE OF THE SERVICE WILL ASSIST A USER IN GETTING PREGNANT.
- A USER MAY OR MAY NOT SUCCESSFULLY DISCOVER A PATTERN THAT LEADS TO A DIAGNOSIS OF A POTENTIAL ILLNESS OR DISEASE.
- ALL INFORMATON IS INPUT BY YOU AND YOU ARE SOLEY RESPONSIBLE FOR THE INTERPRETATION OF YOUR INFORMATION.
CERTAIN INFORMATION PROVIDED THROUGH THE SERVICE MAY INVOLVE DISCUSSION OF REPRODUCTIVE ANATOMY AND/OR SEXUAL ACTS AND THEREFORE MAY NOT BE APPROPRIATE FOR ALL USERS. IF YOU ARE OFFENDED BY MATERIAL OF A SEXUAL NATURE, INCLUDING INFORMATION ABOUT CONCEIVING OR AVOIDING CONCEIVING A CHILD, OR DISCUSSION OF REPRODUCTIVE ANATOMY THEN YOU SHOULD NOT USE THE SERVICE.
1. ACCEPTANCE OF TERMS
PLEASE READ THESE TERMS CAREFULLY AS THEY CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND KINDARA. BY ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS, INCLUDING AS SUCH TERMS MAY BE AMENDED BY KINDARA FROM TIME TO TIME, IN ITS SOLE DISCRETION, AS SET FORTH BELOW. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY KINDARA, THEN YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE.
2. ELIGIBILITY; ACCESS
You represent and warrant that you are at least the age of majority in the jurisdiction where you are located (which is 18 years of age in most locations in the United States) and fully able, competent and authorized to enter into and be bound by these Terms. You are authorized to use the Service for personal, non-commercial use only. You may not use the Service for any commercial purpose without the express, prior written consent of Kindara.
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then you are not permitted to use the Service.
The Website, the App, and the Service are controlled and offered by Kindara from its facilities in the United States of America and are offered to residents of the United States and Canada. Kindara make no representations that the Website, the App or the Service are appropriate or available for use in any other locations. Those who access or use the Website, the App or the Service from other jurisdictions do so at their own risk and are responsible for compliance with local law.
3. ADDITONAL TERMS
3.2 Guidelines. While using the Service, you may be subject to additional posted rules and policies (“Guidelines”). Any and all such Guidelines are hereby incorporated by reference into these Terms.
4. MODIFICATION OF THE TERMS
Kindara reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time and from time to time with or without specific notice to you other than through posting such modified Terms on the Website or through the Web App, or both. The Terms will be identified as of the most recent date of revision and will be effective immediately upon posting unless otherwise specified herein. In the event of a material change to these Terms, we will attempt to notify you directly through a message sent to the e-mail address you provided upon registration or through the use of a pop-up window when you log in to the App. You hereby acknowledge and agree that you will review these Terms periodically for any changes and review the date of last revision at the beginning of these Terms. If you are dissatisfied with the terms of the Service, then you agree that your sole and exclusive remedy is to discontinue any use of the Service. A modification to these Terms made following the commencement of any dispute between you and Kindara will not apply to such dispute but previous modifications to these Terms shall be binding upon you and/or Kindara and be applicable as set forth in this Section 4.
5. DESCRIPTION OF SERVICE
5.1 General. The Service is intended to assist women and couples to track health and fertility information over time. Some Users may use the Service to gain knowledge of their general and reproductive health, and/or to get pregnant, and/or to avoid becoming pregnant. The Service will enable a user to input personal information related to health and fertility indicators, including, but not limited to, a woman’s date of last period, menstrual flow, waking temperature, cervical fluid consistency and amount, cervical feel, cervical position, changes in mood, breast tenderness or size changes, intercourse, vaginal sensation, dietary information, weight, breast self-exam results, ovulation predictor kit results, pregnancy test results, medications taken and such other information as the Service may permit a User to track from time to time (collectively, “Personal Information”). A User may wish to input certain Personal Information on a daily basis. Many of the elements of Personal Information have been recognized in the health & fertility literature as helpful guidelines to gain insight in general health, reproductive health, and/ or for trying to get pregnant, and/ or avoiding pregnancy. All information related to a User is input by the User. The Service may use the information input by a User to provide information back to the User regarding her fertility using the Personal Information. Information provided back to a User compares a User’s Personal Information to predictive data sourced from authoritative fertility literature including but not limited to Taking Charge of Your Fertility by Toni Weschler, The Garden of Fertility by Katie Singer, and Natural Birth Control by Barbara Kass-Annese and other sources as may be chosen by Kindara from time to time. The information provided back to a User is not under any circumstances to be interpreted or acted upon as medical advice. Kindara does not provide medical advice and all users are responsible for obtaining their own medical advice from licensed practitioners they trust.
5.2 Communications from Service. The Service may provide information to a User through the User’s personal account on the Website or App, or via e-mail.
5.4 Responsibility for Personal Information; Representations and Warranties. Each User who uploads any Personal Information to the Service is solely responsible for such Personal Information and the consequences of posting such Personal Information to the Service, including if a User authorizes a third party (e.g., a partner) to review such Personal Information. By uploading Personal Information to the Service, you affirm, covenant, represent, and warrant that: (a) you have the right to submit such information to the Service; (b) the information submitted by you is accurate to the best of your knowledge or ability; and (c) you are not violating the rights of any third party by submitting Personal Information to the Service.
6. FEES FOR SERVICE
6.1 General. All or portions of the Service may be provided for free or for a recurring subscription fee. You will be notified in advance in the the App before signing up for any portion of the Service for which a recurring subscription fee is charged. You will have to manifest your consent to obtain fee-based services by clicking an Accept button. Once you click Accept, you will be subject to the recurring subscription fee that you have accepted for the period of time selected, and you agree to pay in full such amount.
6.2 Taxes. All recurring subscription fees are exclusive of any applicable taxes (value added taxes, sales, use, etc.) unless otherwise stated, and you are solely responsible for the payment of any applicable taxes that may be imposed upon you for use of the Service.
6.3 Free Trial Period. Certain fee-based portions of the Service may be available for a one-time free trial period (a “Trial Period”). The duration of a Trial Period will be identified for you when you register for the Trial Period. In order to register for a Trial Period, you may be required to provide credit card information in accordance with Section 6.4 and create a User account. When you create a user account that is subject to a Trial Period, you will be notified of the length of the trial period and the date by which you must cancel to avoid having your credit card charged. Unless you terminate your Trial Period prior to the end of such Trial Period, your credit card will be charged the recurring subscription fee applicable at the time you signed up for the Trial Period. If at any time you wish to know how much time is remaining in your trial period, this information is available under the “Account” tab from within the application. You may cancel your account at any time during the Trial Period by clicking the “Account” tab from within the application.
6.4 Payment Method. Subscription fees must be paid using a lawfully issued credit card for which you have authorization to make a charge. Kindara may seek pre-authorization of your credit card prior to permitting you to register for a fee-based aspect of the Service to verify the validity of your credit card. Your credit card provider may reduce your available balance by any amount pre-authorized against your credit card. You should speak with your credit card provider to understand their pre-authorization policies. You must maintain a valid credit card on file with Kindara while receiving fee-based Services. If any charge to your credit card is rejected for any reason, then you agree to provide updated credit card information upon request by Kindara and to pay any balances due. Kindara reserves the right to block access to your User account until such time as a valid credit card is provided to cover all charges incurred by you. You are solely responsible for any late fees or other charges incurred by you as a result of your use of a credit card to pay a subscription fee.
6.5 Monthly and Annual Subscriptions.
(a) Payment Frequency. Kindara may offer fee-based services on a monthly or annual subscription basis. Both options are auto-renewal, meaning that once you sign up for either the monthly or annual subscription, your credit card will be charged the renewal fee at the end of the period for which you have registered for a subsequent renewal period. The renewal fee charged to your account will be the fee then in effect for the period for which you are renewing. Renewal notices will not be sent to you if you elect a monthly subscription but a renewal notice will be sent to you approximately 30 days prior to the renewal of an annual subscription. If you fail to terminate your account prior to any periodic renewal, then your credit card will be charged the full amount for the renewal period.
(b) Changes in Subscription Fees. Kindara may change subscription fees at any time and from time to time. You will be notified of any price changes either via e-mail or through a pop-up window on the Website or the App, or both. Continued use of the Service following a price change constitutes your acceptance of the applicable price change. If you object to any price changes adopted by Kindara, then your sole remedy is to discontinue use of the Service and terminate your account prior to your credit card being charged a recurring subscription fee at the changed rate. The provisions of this paragraph are subject to all applicable local laws.
6.6 Timing of Charges. Renewal fees are charged to your credit card on or about the anniversary of your initial subscription
6.7 Managing Your Account Information. You can manage and update your credit card information for fee-based services by clicking on the “Account” tab in the application.
6.8 Cancellation of Subscription Services; No Refunds. You may cancel your subscription to any fee based service offered by Kindara at any time by clicking on the “Account” tab in the application. However, all payments are final and there are no refunds offered for the early termination of any period for which you have paid a subscription fee (including renewal periods). Local law may vary this policy, in which case your rights under these Terms may differ from those stated herein.
7. OWNERSHIP; PROPRIETARY RIGHTS
7.1 The Website , the App and the Service are owned and operated by Kindara. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Website , the App and the Service that are provided by Kindara (the “Kindara Materials”), are or may be protected by copyright, trade dress, patent, and trademark laws of the United States, Canada and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights and applicable laws. Kindara Materials do not include User Personal Information. All Kindara Materials are the property of Kindara or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names contained in the Kindara Materials are proprietary to Kindara or its affiliates and/or third-party licensors. Except as expressly authorized by Kindara, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Kindara Materials. Kindara reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Kindara Materials, except for the limited rights set forth in these Terms. Kindara claims no ownership in or to any content or other materials provided by or obtained from third-party websites.
7.2 Retention of Rights. A User retains all rights in the User’s Personal Information, subject to the grant of rights set forth in these Terms.
8. WARNINGS; CONTENT DISCLAIMER
8.1 Risks of Sexual Activity; Pregnancy. Engaging in sexual activity, including activities described and/or recommended through the Service, may expose one or more partners to sexually transmitted diseases (“STDs”). As between you (a User), on the one hand, and the Kindara Licensees, on the other hand, you assume complete and sole responsibility for any STDs that may be transmitted to or from you as a result of any sexual activity engaged in by you. You also assume complete and sole responsibility for any pregnancy or loss of pregnancy that may result from any sexual activity engaged in by you. Reliance upon information provided through the Service can neither guarantee you or your partner of getting pregnant, of avoiding a pregnancy, or of diagnosing any health condition. The Service is intended to assist you and your partner in making informed decisions about your health and your bodies, but no guarantee is made on or through the Service by the Kindara Licensees with respect to any issue or matter whatsoever, and you use the Service at your sole risk and expense.
8.2 Third-Party Content. You understand that when using the Service, whether via the Website or the App, you may be exposed to content from a variety of sources, including, but not limited to, medical and other fertility-related information from third parties (“Third-Party Content”), and that Kindara is not responsible for the accuracy, integrity, quality, legality, efficacy, usefulness, safety, or intellectual property rights of or relating to such Third-Party Content. You further understand and acknowledge that you may be exposed to Third-Party Content that is inaccurate, false, misleading, unsupported by scientific research, disputable, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Kindara with respect thereto. Kindara does not endorse any Third-Party Content and all Third-Party Content is provided for informational purposes only. Under no circumstances will Kindara be liable in any way for or in connection with any Third-Party Content, including, but not limited to, for any inaccuracies, errors or omissions in any Third-Party Content, any intellectual property infringement with regard to any Third-Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content accessed through the Service, including any unplanned or unwanted pregnancies that may arise from reliance upon such Third-Party Content.
8.3 No Medical Advice. KINDARA DOES NOT PROVIDE MEDICAL ADVICE AND THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE. YOU ARE ADVISED TO CONSULT WITH A PHYSICIAN BEFORE USING THE SERVICE OR RELYING UPON ANY INFORMATION PROVIDED BY THE SERVICE TO AVOID GETTING PREGNANT, IN AN ATTEMPT TO GET PREGNANT, OR TO DIAGNOSE ANY HEALTH CONDITION. ANY INFORMATION PROVIDED TO YOU VIA THE SERVICE IS BASED UPON THE PREDICTIVE VALUE ASSIGNED BY THIRD PARTIES, AND A USER MUST DRAW THEIR OWN CONCLUSIONS – IN CONSULTATION WITH THEIR DOCTORS – ABOUT THE VALUE OF THE INFORMATION PROVIDED BY THE SERVICE.
8.4 Safe and Responsible Use. You are solely responsible for your use of the Website, the App, and the Service, and you should use common sense and exercise good judgment when making choices concerning such use. Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind: (a) you should consult a physician before relying upon any information obtained through the Service or if experiencing any adverse medical symptoms; (b) you should read all instructions and warnings before using any devices that may collect and/or transmit information to the Service (e.g., thermometers); (c) activities that involve prolonged screen viewing time may lead to eye strain; and (d) you should never use the Website, the App, or the Service while driving a motor vehicle or operating other equipment or machinery, or while engaging in other activities that require focused attention to accomplish safely.
8.5 Disclosure of Personal Information. You should be judicious and act responsibly and carefully before using the Service. The information you provide to the Service may be sensitive and of a highly personal nature and you should investigate the data storage policies and retention capabilities of any equipment you use to access the Service, including those of any devices used to access the Website or the App. If you are not the exclusive owner or user of a device used to access the Service, then you may want to avoid using such device for accessing the Service. Be aware that many computers provided by employers are subject to policies that may allow remote access and monitoring, and any information you communicate to the Service may be subject to access and monitoring by your employer. Disclosing Personal Information may be embarrassing and subject you to mental and physical harm. All disclosures that you make about yourself on or through the Website or the App for use of the Service are made at your own risk and Kindara shall not be responsible for any damages, injury or harm, including physical injury, which may arise from any disclosures made by you.
9. PROHIBITED USES
9.1 As a condition of your use of the Service, you agree not to use the Website, the App or the Service for any purpose that is unlawful or prohibited by these Terms or in any territory where you are located. Access to the Website, the App and the Service from territories where access or use thereof is illegal is strictly prohibited. You are responsible for complying with all local rules, laws, and regulations during your use of the Service.
9.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any portion of the Website, the App or the Service, use of the Service, access to the Service or Third-Party Content obtained through the Website, the App or the Service, for any purpose not expressly authorized in these Terms.
9.3 You agree not to intentionally interfere with or damage, impair or disable the operation of the Website, the App or the Service by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious or harmful code.
9.4 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, the App or the Service, features that prevent or restrict the use or copying of any content accessible through the Website, the App or the Service, or features that enforce limitations on the Website, the App or the Service or any Third-Party Content.
9.5 You agree not to attempt to gain unauthorized access to the Website, the App, or the Service, or any part of them, other User accounts, computer systems or networks connected to the Website or the App, or any part of them, through hacking, phishing, password mining or any other means or interfere or attempt to interfere with the proper working of the Website, the App or the Service or any activities conducted on or through any of the foregoing.
9.6 You may not engage in any activity or effort, either directly or indirectly, to identify other users of the website, the app or the services, and any attempt to do so will subject you to all remedies available to Kindara and such other users, whether at law or in equity.
9.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Website, the App or the Service. You agree not to modify the Website or the App in any manner or form, or to use modified versions of the Website or the App, including, without limitation, for the purpose of obtaining unauthorized access to the Website, the App or the Service, unless the modifications are expressly permitted by Kindara.
9.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the Website or the App for any purpose without our express written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Website or to the App. To create and maintain a user account, you must be a human. Accounts created and/or maintained by bots or other non-human entities are prohibited.
9.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other Kindara materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Kindara name or trademarks for any purpose without our express written consent.
9.10 You will promptly remove any links that Kindara finds objectionable in its sole discretion. You agree not to use any Kindara logos, graphics, or trademarks as part of a link without our express written consent.
9.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
9.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Website, the App or the Service, or any portions thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
9.13 You agree not to modify, adapt, translate or create derivative works based upon the Website, the App or the Service except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
9.14 You agree that you will not misrepresent your identity, access another User’s account, or provide any false or misleading information about yourself or any other User.
10. YOUR PERSONAL ACCOUNT
10.1 Account Registration. In order to access portions of the Service you may need to create an account on the Website or through the App. You agree that the information you provide to Kindara upon registration and, at all other times, will be true, accurate, current, and complete. You acknowledge, consent, and agree that Kindara may access, preserve, and disclose your account information and your Personal Information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce these Terms; (3) respond to your requests for customer service; or (4) protect the rights, property, business interests or personal safety of Kindara, its users or the public.
10.2 Password. When you register as a User you will be asked to create a password for your account. As you will be responsible for all activities that occur under your password, including ordering a subscription Service, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, and any credit card information submitted thereunder, and for restricting access to your computer. or any device on which you use the App, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you are required to immediately notify Kindara. You may be liable for the losses incurred by Kindara or others due to any unauthorized use of your account. If you choose to grant another person access to your User account, such as a partner, you are solely responsible for such other User’s use of and access to your User account.
11. LINKS AND THIRD-PARTY CONTENT
11.2 Additional Restrictions May Apply. Notwithstanding any rights and licenses granted to you in these Terms, the Website and the App may contain Third-Party Content for certain limited uses, and your right to access, use, and share the Third-Party Content, and any content that contains, incorporates, adapts, or otherwise utilizes such Third-Party Content, may be subject to certain additional restrictions. You agree to abide by all restrictions and limitations of use that apply to such Third-Party Content.
12. AVAILABILITY OF SERVICE
Kindara may discontinue or make changes to the Website, the App or the Service at any time with or without notice and without any liability to you. Kindara makes no guarantees that the Website, the App or the Service will be available at all times or on an uninterrupted basis.
13.1 Termination By Kindara. You agree that Kindara may terminate your account at any time for your violation of any of the provisions of these Terms or your failure to pay subscription fees accepted by you. You agree that any termination of your access to the Service or your User account may be undertaken without prior notice, and you agree that Kindara shall not be liable to you or any third party for any such termination.
13.2 Termination By You. If you are dissatisfied with the Kindara Properties, please let us know by e-mailing us at email@example.com.Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (a) the Website or the App, (b) any term of these Terms, (c) any policy or practice of Kindara in providing the Service, or (d) any content or information transmitted through the Website or the App, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account by clicking on the “Account” tab from within the application and clicking the “Cancel My Account” link, discontinuing your use of any and all parts of the Website or the App, and providing Kindara notice of termination by e-mailing us at firstname.lastname@example.org.
13.3 Consequences of Termination. Upon the termination of your Account, either by you or Kindara, your access to your Personal Information shall immediately terminate and you are solely responsible for maintaining copies of any Personal Information you have uploaded to the Website or through the App. Kindara may retain copies of your Personal Information upon the termination of your User account on backup tapes or other storage media, or as compiled in data analysis performed by or on behalf of Kindara.
14. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify and hold harmless Kindara, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees and court costs) arising out of: (1) your use or misuse of the Website, the Web App or the Service; (2) your violation of these Terms; (3) your violation of the rights of any other person or entity, and (4) your breach of the foregoing representations, warranties, and covenants. Kindara reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Kindara and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Kindara. Kindara will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15. DISCLAIMERS; NO WARRANTIES
15.1 No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KINDARA, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH RESPECT TO THE WEBSITE, THE APP, AND THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KINDARA OR THROUGH THE WEBSITE, THE APP OR THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM KINDARA INCLUDES KINDARA’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES, AND SUBCONTRACTORS.
15.2 "As is" and "As available" and "With All Faults”. YOU EXPRESSLY AGREE THAT THE USE OF THE WEBSITE, THE APP, AND THE SERVICE IS AT YOUR SOLE RISK, AND THAT THE FOREGOING ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
15.3 Platform Operation and Content. KINDARA, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE WEBSITE, THE APP, AND THE SERVICE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU MUST HAVE AN ACTIVE INTERNET CONNECTION IN ORDER TO ACCESS THE WEBSITE OR THE APP IN ORDER TO RECEIVE THE SERVICE.
15.4 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE, THE APP OR REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR DEVICE ON WHICH THE APP IS RESIDENT) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR THE INSTALLATION OF THE APP OR ANY INFORMATION PROVIDED BY THE SERVICE.
16. LIMITATION OF LIABILITY AND DAMAGES
16.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL KINDARA OR ITS AFFILIATES, CONTRACTORS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THE WEBSITE, THE APP, THE SERVICE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH CONSCIOUS CYCLES, EVEN IF KINDARA OR A KINDARA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, KINDARA'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.2 Limitation of Damages. IN NO EVENT SHALL KINDARA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE WEBSITE, THE APP OR THE SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), AS DETERMINED IN A FINAL NON-APPEALABLE DETERMINATION BY A COURT OF COMPETENT JURISIDCTION OR BY AGREEMENT OF YOU AND KINDARA, EXCEED THE AMOUNT OF FEES YOU HAVE PAID KINDARA IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
16.3 Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KINDARA AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE WEBSITE, THE APP, THE SERVICE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
17. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN
17.1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
17.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT KINDARA HAS OFFERED THE WEBSITE, THE APP, AND THE SERVICE, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KINDARA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KINDARA. YOU ACKNOWLEDGE AND AGREE THAT KINDARA WOULD NOT BE ABLE TO PROVIDE THE WEBSITE, THE APP OR THE SERVICE ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
18. UNAUTHORIZED USE OF THIRD-PARTY CONTENT; DIGITAL MILLENNIUM COPYRIGHT ACT
18.1 If you own the rights to any intellectual property or are an agent for an owner, and you believe any content made available on the Website or through the App infringes your or your principal’s intellectual property rights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Kindara’s Designated Copyright Agent with the following information in writing:
- 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 intellectual property claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kindara to locate the material;
- information reasonably sufficient to permit Kindara to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property owner, its agent, or the law (for example, “I am under the good faith belief that the use of the intellectual property that is identified herein 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”).
Please consult your legal counsel or see 17 U.S.C. § 512 to confirm these requirements.
18.2 Termination of User Accounts for Infringement; Repeat Infringer Policy. Kindara does not tolerate infringing activities and infringement of intellectual property rights on or through the use of the Website or the App, and Kindara will remove all content if properly notified that such content infringes on another's intellectual property rights, including copyrights and trademarks. It is Kindara policy to respond promptly to notices of alleged infringement that comply with the DMCA. In addition, Kindara will promptly terminate without notice the accounts of Users, that are determined by Kindara to be “repeat infringers.” A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had content removed from the Website or the App more than twice.
18.3 Designated Agent. Kindara’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:
Attention: Copyright Agent
939 Pearl Street, Ste 205
Boulder CO 80302
or by e-mail at email@example.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Kindara customer service through firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
19. United States Export Controls
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority when using the Website, the App or the Service, and not to export, or allow the export or re-export of any technical data or any direct product of any of the foregoing in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
20.1 Notice. Kindara may provide you with notices, including those regarding changes to these Terms, by postings on the Website or the App, via electronic mail, or by postal delivery. Notice sent via e-mail will be deemed given twenty-four hours after such e-mail is sent, unless Kindara is notified that the electronic mail address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you. In such case, notice will be deemed given three days after the date of mailing. Notice given via the Website or the App will be deemed given upon the earlier of 5 days following posting on the Website or the App or when first reviewed by you.
20.2 Dispute Resolution. If a dispute arises between you and Kindara, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Kindara agree that we will resolve any claim or controversy at law or equity that arises out of these Terms (a “Claim”) in accordance with one of the subsections below or as Kindara and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
(a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of New York and the United States of America. You agree that any claim or dispute you may have against Kindara must be resolved by a court located in Manhattan County, New York, except as otherwise agreed by you and Kindara or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the federal and state courts located within Manhattan County, New York for the purpose of litigating all such claims or disputes, and hereby waive any claims or defenses that such courts are an inconvenient forum.
(b) Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $5,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any ADR provider chosen under this Section 20.2(b) must be located in an office based in, or be a permanent resident of, Manhattan County, New York.
(c) Improperly Filed Claims. All claims you bring against Kindara must be resolved in accordance with this Section 20.2 (Dispute Resolution).
All claims filed or brought contrary to this Section 20.2 (Dispute Resolution) shall be considered improperly filed. Should you file a claim contrary to this Section 20.2 (Dispute Resolution), Kindara may recover attorneys’ fees and costs up to $5,000, provided that Kindara has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
20.3 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Kindara to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
20.4 Severability. In the event that the application of any provision of these Terms to any particular facts or circumstances shall be held to be invalid or unenforceable under the law hereof, then: (a) such provision shall be reformed without further action by the Parties to the extent strictly necessary to render such provision valid and enforceable when applied to such particular facts or circumstances; and (b) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of all of the other provisions of these Terms, shall in no way be affected or impaired thereby.
20.5 Assignment. The Terms and related Guidelines (if any), and any rights and licenses granted hereunder, may not be transferred or assigned by you, whether by sale, merger, operation of law, or otherwise, without Kindara’s prior written consent, but may be assigned by Kindara without restriction. Any assignment attempted to be made in violation of these Terms shall be void. These Terms shall be binding upon and inure to the benefit of the parties hereto, and their permitted successors, heirs, and assigns.
20.6 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kindara as a result of these Terms or use of the Kindara Properties.
20.7 Survival. Sections 7 (“Ownership; Proprietary Rights”), 10.2 (“Password”), 14 (“Indemnification; Hold Harmless”), 15 (“Disclaimers; No Warranties”), 16 (“Limitation of Liability and Damages”), 17 (“Limitations by Applicable Law; Basis of the Bargain”), and 19 (“Miscellaneous”) will survive any termination of these Terms.
20.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
20.9 Entire Agreement. This is the entire agreement between you and Kindara relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing signed by both parties, or by a change to these Terms made by Kindara as set forth in Section 4 above.
20.10 Disclosures. The services hereunder are offered by Kindara Inc. You can contact Kindara Inc. via postal mail at
939 Pearl Street, Ste 205
Boulder CO 80302
Or by electronic mail at email@example.com. Depending upon the jurisdiction where you reside, you may have a right to have this same information sent to you via electronic mail by sending a letter to the foregoing address with your electronic mail address and a request for this information.