End User License Agreement
KITH + KIN
END USER LICENSE AGREEMENT
Last Modified: January 9, 2023
This END USER LICENSE AGREEMENT (“Agreement”) is a binding agreement between you (“You” or “Licensee”) and KITH AND KIN, LLC, a Pennsylvania limited liability company with offices located at 24 Longacre Drive, Collegeville, PA 19426 (“Company”). This Agreement governs Your use of the Kith + Kin program and subscription services, which may be available either on the www.kithandkin.app website or the Kith + Kin mobile or web application (including all related documentation, the “Application”).
COMPANY PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR REGISTERING FOR OR USING THE APPLICATION, YOU ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, COMPANY WILL NOT AND DOES NOT LICENSE THE APPLICATION TO LICENSEE AND YOU MUST NOT USE THE APPLICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY APPLICATION THAT LICENSEE DID NOT ACCESS OR USE LAWFULLY.
THE APPLICATION IS NOT A MEDICAL OR HEALTHCARE SERVICE. COMPANY IS NOT A COVERED ENTITY, HEALTH PLAN, HEALTH CARE CLEARINGHOUSE, HEALTH CARE PROVIDER, OR FEDERALLY ASSISTED PROGRAM. THEREFORE, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AS AMENDED BY THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (“HIPAA”), AND THE REGULATIONS ISSUED PURSUANT THERETO, DO NOT APPLY TO COMPANY OR ANY USER CONTENT. LICENSEE ACKNOWLEDGES AND UNDERSTANDS THAT COMPANY IS NOT A HEALTHCARE PROFESSIONAL AND DOES NOT PROVIDE MEDICAL, HEALTH OR OTHER PROFESSIONAL SERVICES OR ADVICE, NOR DOES COMPANY VERIFY THE ACCURACY OR COMPLETENESS OF USER CONTENT (AS DEFINED IN SECTION 6 BELOW). THE APPLICATION IS NOT A REPLACEMENT FOR PROPER MEDICAL CARE.
1. Registration. Licensee represents and warrants that: (i) Licensee is of legal age to form a binding contract; (ii) Licensee will provide Company with accurate, current and complete registration information when registering to use the Application; and (iii) Licensee’s registration and use of the Application is not prohibited by law. Company reserves the right to suspend or terminate Licensee’s registration or access to the Application, with or without notice to Licensee, in the event that Licensee breaches any term of this Agreement.
2. License Grant and Scope. Subject to the terms and conditions set forth in this Agreement, Company hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to access, download, install, and use the Application for Your personal, non-commercial use on a device owned or otherwise controlled by You.
3. Third-Party Materials. The Application may include software, content, data, or other materials, including related documentation, that are owned by parties other than Company and that are provided to Licensee on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
4. License Restrictions. Licensee shall not, directly or indirectly: (a) use or copy the Application beyond the scope of the license granted under Section 2; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof; (c) combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Application, including any copy thereof; (f) except as expressly set forth in Section 2, copy the Application, in whole or in part; (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (h) use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including power generation systems, aircraft navigation or communication systems, air traffic control systems, or any other transport management systems, safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems, and, military or aerospace applications, weapons systems, or environments; (i) use the Application in violation of any law, regulation, or rule; or (j) use the Application for purposes of competitive analysis of the Application, the development of a competing software product or service, or any other purpose that is to the Company’s commercial disadvantage.
5. Responsibility for Use of Application. Licensee is responsible and liable for all uses of the Application through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Application by any other party to whom Licensee may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement.
6.User Content. The Application contains interactive features that may allow users to add, upload, copy, post, submit, publish, display, modify, or share content or materials, including sensitive personally identifiable information (PII) and personal health information (PHI) (collectively, “User Content”) on or through the Application. Licensee represents and warrants that Licensee owns or has the necessary rights to use User Content in the manner used by Licensee in the Application and that Licensee’s use of the User Content in the Application will not violate the legal rights (including the rights of privacy) of others. Licensee recognizes the sensitive nature of the User Content and that the Application enables Licensee to share User Content with others. Licensee acknowledges and agrees (a) that Licensee is responsible for ensuring that Licensee understands how to correctly use the Application and select what User Content to share and with whom, and (b) to assume the risks associated with (i) Licensee’s inadvertent sharing of any User Content, and (ii) any reliance by Licensee or any third party on the accuracy or completeness of User Content. Licensee understands that Licensee is responsible for all User Content, and that Licensee, not Company, has full responsibility for such content, including its legality, reliability, accuracy, completeness, confidentiality, and appropriateness. Company has the right to remove any User Content for any reason in Company’s sole discretion and to suspend Licensee’s account for suspected or actual violation of this Section 6, which may be determined in Company’s sole discretion.
7. Compliance Measures. The Application may contain technological copy protection or other security features designed to prevent unauthorized use of the Application, including features to protect against any use of the Application that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
10. Geographic Restrictions. The Content and Services are based in the United States. You acknowledge that You may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If You access the Content and Services from outside the United States, You are responsible for compliance with local laws.
11. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on Your device settings, when Your device is connected to the internet either: (a) the Application will automatically download and install all available Updates; or (b) You may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should You fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
12. Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Licensee acknowledges and agrees that the Application is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Application (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
13. Payment. If Licensee purchases Licensee’s license to the Application or any enhancements or features within the Application, either on a one-time or subscription basis, Licensee will pay Company the applicable fees and any related taxes (other than taxes on Company’s income). Company may change its fees at any time. Licensee authorizes Company to charge the applicable fees to the payment card that Licensee submits to Company and agrees that Company and any Company affiliates may store Licensee’s payment card information. Licensee will pay all fees and taxes as they become due. Licensee’s obligation to pay fees continues through the end of the Term. If Licensee’s payment card issuer or bank does not honor charges Licensee has paid using Licensee’s card, Licensee will remain directly liable to Company for all unpaid amounts. If Licensee fails to pay applicable fees, Company reserves the right to charge interest at the rate of 1.5% per month, or the maximum amount permitted by law if lower. Nonpayment of any fees or other sums due to Company or any other party related to Licensee’s use of the Application will result in Application termination. Company may, at Company’s discretion, also appoint an outside debt collection agency to collect amounts owed to Company. Licensee agrees to reimburse Company for all costs that Company incurs in enforcing Company’s collection of Licensee’s unpaid amounts, including debt collection agency fees, reasonable attorneys’ and legal fees and court costs.
14. Term and Termination. This Agreement commences when You download, install, access, register for, or use the Application and will remain in effect until terminated as set forth herein (the “Term”). You may terminate this Agreement by ceasing to use the Application and deleting the Application and all copies thereof from Your devices. Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without notice if You violate any of the terms and conditions of this Agreement. Upon termination of this Agreement, all rights granted to You hereunder shall also terminate, and You must cease all use of the Application and delete all copies of the Application from Your device and account. Termination will not limit any of Company’s rights or remedies at law or in equity. Your subscription may automatically renew at the end of the then-current subscription period. You are responsible for knowing when Your then-current subscription period ends and terminating Your subscription prior to the renewal date if You wish to discontinue Your use of the Application. If You have questions or require support with Your subscription, You may contact Company at firstname.lastname@example.org.
15. Warranty Disclaimers. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED APPLICATION WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO ANY USER CONTENT, INCLUDING THE LEGALITY, RELIABILITY, ACCURACY, COMPLETENESS, CONFIDENTIALITY, OR APPROPRIATENESS OF USER CONTENT.
THE APPLICATION IS INTENDED TO BE A MEANS OF STORING, MANAGING, AND SHARING INFORMATION, AND NEITHER THE APPLICATION NOR COMPANY IS A COVERED ENTITY, AS THAT TERM IS DEFINED UNDER HIPAA AND THE REGULATIONS PROMULGATED THEREUNDER, OR A FEDERALLY ASSISTED PROGRAM, AS THAT TERM IS DEFINED IN 42 C.F.R. PART 2. COMPANY IS NOT A HEALTHCARE PROVIDER AS DEFINED BY FEDERAL AND STATE LAWS AND REGULATIONS PERTAINING TO MEDICAL PROVIDERS AND OTHER HEALTH CARE RELATED MATTERS. LICENSEE SHOULD CONSULT A LICENSED/CERTIFIED HEALTHCARE PROFESSIONAL PRIOR TO USING OR RELYING ON ANY USER CONTENT OR THE APPLICATION. USER CONTENT IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED UPON FOR MEDICAL TREATMENT OR HEALTHCARE DECISIONS.
1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, DEATH, PROPERTY DAMAGE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA OR USER CONTENT OR LOSS OF CONFIDENTIALITY OF ANY DATA OR USER CONTENT, COMPUTER OR DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING IN CONNECTION WITH LICENSEE’S USE OF THE APPLICATION.
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
1. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Your use or misuse of the Application or Your breach of this Agreement, including but not limited to User Content.
2. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
3. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are an agency of the US Government or any contractor therefor, You receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Entire Agreement. This Agreement and all other documents that are incorporated by reference herein constitutes the sole and entire agreement between Licensee and Company with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 21(d) is void. Company may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Modification/Amendment. We may revise and update this Agreement from time to time at our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Agreement means that You accept and agree to the changes. You are expected to check this page each time You access this Website so You are aware of any changes, as they are binding on You.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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