Welcome to KYND Wellness Limited (“KYND”, “we”, or “us”). The KYND services available through our website located at www.kyndwellness.com (the “Website”) and mobile applications, including the applications entitled “KYND Wellness” (each, an “App”), is an online wellness platform that allows organisations of all sizes and their employees to engage in wellness (the “Service”).
This Agreement is the complete and exclusive agreement between you and KYND with respect to the subject matters hereof (including the Service, Website and the Apps) and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matters (including any prior agreements).
This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
Agreement Date: 01 May 2016
1.1 This Agreement commences on the date you accept this Agreement (as described in the preamble) and will remain in full force and effect while you use the Service, unless earlier terminated in accordance with this Agreement.
1.2 Notwithstanding the forgoing, if you used the Service prior to the date you accepted this Agreement (as described in the preamble), you hereby acknowledge and agree that this Agreement commences on the date you first use the Service (whichever is earlier and which may be prior to the Agreement Version Date) and will remain in full force and effect while you use the Service, unless earlier terminated in accordance with this Agreement.
1.3 We may (a) suspend your rights to use the Service, and/or any related services or (b) terminate this Agreement, at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this Agreement. Without limiting the foregoing, KYND reserves the right to terminate its Agreement with any user who repeatedly infringes third party copyright rights upon prompt notification to KYND by the copyright owner or the copyright owner’s legal agent. In any event, on suspension or termination, you must immediately cease using the KYND Service, Website and App and must not attempt to gain further access.
1.4 Upon termination of this Agreement, your right to use the Service will automatically terminate immediately. You understand that any termination may involve deletion of your User Content associated therewith from our live databases. KYND will not have any liability whatsoever to you for any termination of this Agreement, including deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.4, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.
2.1 Grant of License
KYND grants you a non-transferable, non-exclusive, limited license to use the Service, Website and App for your personal use, subject to the terms of this Agreement. KYND grants you a non-transferable, non-exclusive license to use a copy of the App downloaded solely to access and use the Service on a mobile device that you own or control (collectively the “License”).
This License may be terminated by KYND at any time or shall automatically terminate if you violate any of the restrictions listed under section 2.2 or terminated in accordance with section 1.3 of this Agreement. Upon terminating of this License, you must delete the any Apps download and must destroy any downloaded materials in your possession whether in electronic or printed format.
2.2 License Restrictions
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, Website or any App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website or App, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access the Service, Website or any App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of the Website or any App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any App. Any future release, update, or other addition to functionality of the Service, Website or App shall be subject to the terms of this Agreement, unless otherwise provided in terms associated with such addition. All copyright and other proprietary notices on any Website content must be retained on any copies. This App is for personal/consumer use only and not for commercial purposes. Not more than one (1) mobile device may be paired with the Services of the App at any one time by a single user. By downloading and using the App and the Services, you represent that you are in compliance with the restrictions set forth in this Agreement.
KYND reserves the right, at any time, to modify, suspend, or discontinue the Service, Website or App or any part thereof with or without notice. In the future we may offer additional services, features, functionalities and in-app purchases. You agree that KYND will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website or App or any part thereof.
2.4 Local Laws
KYND makes no representation that the Service, Website or any App is appropriate for use in locations other than New Zealand and Australia. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations.
2.5 Creating an Account
Full use of the KYND Service requires that you create an account by providing us with a valid email address and strong password. You are responsible for all activity that occurs in association with your account. KYND is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the KYND Service. These communications are part of the KYND Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
2.6 Medical Disclaimer
The KYND Website and App provides you with the KYND score, KYND body score, KYND life score and other scores and various health, wellbeing and similar information (collectively the “Information“) compiled based on the details specified by you, such as certain clinical health data, family history and your lifestyle (the “Data“).
The Information generated by KYND is of a general nature and is for information purposes only. This Information is not advice, and should not be treated as such.
All information published on the Service, Website and Apps is accurate at the time of publication. While the information on the Service, website and App has been researched, reviewed and presented with all due care, the content is provided for general education and information only. Opinions expressed in this Website or Apps do not constitute expert medical or health care advice, and may periodically contain inaccurate information and other general health information.
Information on the KYND Service, Website and Apps is not intended to replace medical advice from a health professional and KYND does not accept any liability for any error or omission, injury, expense, loss or damage incurred by you or another party as a result of you using or relying on any information contained on the Service, Website or Apps or any linked website.
The Information is not intended to substitute the expertise and judgment of any doctor or other healthcare professional. All users are urged to seek advice from a qualified health care professional for diagnosis and answers to their medical questions.
2.7 Use Good Judgement and Common Sense
You should note that the use of the KYND Service should not replace your good judgment and common sense.
2.8 You Agree to Receive Communications from Us
As part of your use of the KYND Service, you may receive emails, text messages, alerts, or notifications. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your telecommunications and/or wireless carrier.
2.9 Communications over Public Telecommunications Networks
The Website and the App transmits information over public telecommunications networks. KYND does not give any warranty or undertaking and does not make any representation that the operation of the KYND Service will be secure, uninterrupted or error free.
2.10 We Are Not Responsible for Third-Party Links
The Website and App may contain links to third-party Websites, Apps or materials supplied by or contained on any third-party Website or App which is linked from or to the Website or App.
KYND does not accept any responsibility or liability for: (i) the availability or accuracy of such Websites, Apps or material or (ii) the content, products or services on or available from such Websites, Apps or materials. Links to such Websites, Apps or materials do not imply any endorsement by KYND of such Websites, Apps or materials or the content, products or services available from such Websites, Apps or materials. You acknowledge sole responsibility for and assume all risks arising from your use of any such Websites, Apps or materials.
2.11 Revisions and Corrections
The materials appearing on the Website and/or Apps could include technical, typographical, or photographic errors. KYND does not warrant that any of the materials on its Website or Apps are accurate, complete, or current. KYND may make changes to the materials contained on its Website or Apps at any time without notice. KYND does not, however, make any commitment to update the materials.
2.12 Changes to the KYND Website, App or Service
KYND may change or discontinue, temporarily or permanently, any feature or component of the Website, App or KYND Service at any time without notice. KYND is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the KYND Service. We reserve the right to determine the timing and content of software updates to the Website, App and Service.
2.13 KYND mobile application from App Store by Apple
The following applies to any Mobile Application you acquire from the App Store (“App Store-Sourced Application”): You acknowledge and agree that these terms in this Agreement are solely between you and KYND, not Apple, and that Apple has no responsibility for the App Store-Sourced Application or content thereof. Your use of the App Store-Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Application. In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Application to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these terms and any law applicable to KYND as provider of the software.
You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the App Store-Sourced Application or your possession and/or use of the App Store-Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these terms and any law applicable to KYND as provider of the application.
You acknowledge that, in the event of any third-party claim that the App Store-Sourced Application or your possession and use of that App Store-Sourced Application infringes that third party’s intellectual property rights, KYND, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these terms.
You and KYND acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these terms as relates to your license of the App Store-Sourced Application, and that, upon your acceptance of the terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms as relates to your license of the App Store-Sourced Application against you as a third-party beneficiary thereof.
3.1 User Content
Any and all content that a user uploads, distributes, or otherwise provides via the Service is known as “User Content”. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by KYND.
3.2 License for User Content
By uploading, distributing, or otherwise using your User Content with the Service, you automatically grant, and you represent and warrant that you have the right to grant, to KYND an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, solely to display your User Content on the Service.
If you provide KYND any feedback or suggestions (“Feedback”), you hereby assign to KYND all rights in the Feedback and agree that KYND shall have the right to use such Feedback and related information in any manner it deems appropriate. KYND will treat any Feedback you provide to KYND as non-confidential and non-proprietary. You agree that you will not submit to KYND any information or ideas that you consider to be confidential or proprietary.
3.4 Acceptable Use Policy
The following sets forth KYND’s “Acceptable Use Policy”:
1) You agree not to use the Service to upload, distribute, or otherwise use any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is tortious, trade libelous, defamatory, false, or intentionally misleading, (c) that is harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, (d) that is harmful to minors in any way; (e) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (f) that violates of any law, regulation, or contractual obligations.
2) You agree not to use the Service to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) collect information or data regarding other users, including e-mail addresses, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Site (e.g., a denial of service attack); (d) attempt to gain unauthorized access to the Service or servers or networks connected to the Site (e.g., through password mining); or (e) interfere with another user’s use and enjoyment of the Service, Website or App.
We reserve the right (but have no obligation) to review any User Content in our sole discretion. We may remove or modify any User Content at any time for any reason in our sole discretion with or without notice to you.
Apps provided to you as part of the KYND Service are licensed to you and not sold. KYND (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Service, Website and all Apps, excluding your User Content (defined below).
This Agreement is not a sale and does not convey to you any rights of ownership in or related to any App. The KYND name, logo, and the product names associated with the Service belong to KYND (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. KYND (and its licensors, where applicable) reserve all rights not granted in this Agreement.
You will indemnify and hold harmless KYND and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the KYND Service, (ii) User Content, or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
THE SERVICE, WEBSITE AND APP ARE PROVIDED “AS-IS” AND AS AVAILABLE AND KYND (AND ITS SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. KYND (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE, WEBSITE OR APP: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT, SHALL KYND (OR ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE KYND SERVICE) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR KYND’S PRIVACY PRACTICES, THE SERVICE, WEBSITE OR APP, EVEN IF KYND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCESS TO, AND USE OF, THE SERVICE, SITE AND APP ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, KYND’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR KYND’S PRIVACY PRACTICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) TEN NEW ZEALAND DOLLARS ($10) OR (B) AMOUNTS YOU’VE PAID KYND IN THE PRIOR 12 MONTHS (IF ANY). IN NO EVENT, SHALL KYND’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You agree that any dispute between you and KYND arising out of or relating to these terms and conditions for Service, the KYND Service (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: The terms and conditions for Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of New Zealand.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against KYND, you agree to try to resolve the Dispute informally by contacting info@kyndWellness.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 30 days after submission, you or KYND may bring a formal proceeding.
We Both Agree To Arbitrate: You and KYND agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Exceptions to Agreement to Arbitrate: Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the KYND Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with KYND on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under our agreement.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the KYND Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
These terms, and any dispute relating to these terms or the KYND Service or the Website or the App, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these terms and conditions or the KYND Service or the Website or the App.
These terms will change over time. If we make minor changes to the terms without materially changing your rights, we will post the modified terms on www.kyndwellness.com. We will notify you by email, through the KYND Service, or by presenting you with a new terms and conditions to accept if we make a modification that materially changes your rights. When you use the KYND Service after a modification is posted, you are telling us that you accept the modified terms.
Except as otherwise stated herein, these terms constitute the entire and exclusive understanding and agreement between KYND and you regarding the KYND Service, and these terms supersede and replace any and all prior oral or written understandings or agreements between KYND and you regarding the KYND Service and User Content. If for any reason a court of competent jurisdiction finds any provision of these terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these terms will remain in full force and effect.
You may not assign or transfer these terms, by operation of law or otherwise, without KYND’s prior written consent. Any attempt by you to assign or transfer these terms, without such consent, will be null. KYND may freely assign or transfer these terms without restriction. Subject to the foregoing, these terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by KYND under these terms, including those regarding modifications to these terms, will be given: (i) via email; or (ii) by posting to the KYND Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
You are responsible for providing KYND with your most current e-mail address. In the event that the last e-mail address you have provided to KYND is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this Agreement, KYND’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. All notices under this Agreement must be in English.
KYND’s failure to enforce any right or provision of these terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of KYND. Except as expressly set forth in these terms, the exercise by either party of any of its remedies under these terms will be without prejudice to its other remedies under these terms or otherwise.