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Last updated August 31 2020
Koya Medical, Inc. and its subsidiaries and affiliates (collectively, “Koya”) provides, or may provide: (1) an Koya user account website that may be accessed at http://www.koyamedical.com and its sub-domains (each, a “Site”), (2) services accessible through the Sites (“Web Apps”), (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), and/or (5) software embedded in the Device (and any updates thereto) (“Embedded Software”), all for use in conjunction with Koya’s wearable compression system device designed for stimulating the body’s lymphatic system (collectively, the “Device”) and in other ways that Koya provides or may provide. The Device and Services may be used together or in ways that may integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, Mobile Apps, Subscription Services, and Embedded Software. The term “Products” means the Services and the Device.
These Terms of Service (“Terms”) govern your access to and use of the Products. Please read these Terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions. The term “you,” as used in these Terms, means any person or entity who accesses or uses the Products and any person or entity who creates an Account (as defined below) and accepts these Terms. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACKNOWLEDGING THESE TERMS OR BY ACCESSING OR USING THE PRODUCTS IN ANY WAY, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS, (2) THAT YOU EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE PROPERTY ON WHICH THE WEB APPS OR MOBILE APPS ARE BEING INSTALLED, (3) THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCTS AND TO ENTER INTO THESE TERMS. KOYA IS WILLING TO PROVIDE SERVICES TO YOU ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCTS.
THE PRODUCTS ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, AND WHILE THE PRODUCTS PROVIDE INFORMATION, WE CANNOT AND DO NOT DIAGNOSE YOUR HEALTH CONDITIONS. ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTHCARE PROVIDER FOR PERSONAL MEDICAL ATTENTION AND ADVICE; DON’T USE THE PRODUCTS AS A SUBSTITUTE FOR CONSULTING WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. USE OF THE PRODUCTS IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES AND OF THE DEVICE CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE DEVICE OR THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4, 5 and DESCRIBE IMPORTANT LIMITATIONS OF THE PRODUCTS. PLEASE READ THESE LIMITATIONS CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
PLEASE BE AWARE THAT SECTION 11 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Koya reserves the right to make changes to these Terms. We'll post notice of modifications to these Terms on this page and update the “Last Updated” date above. You should ensure that you have read and agree with our most recent Terms when you use the Products. Continued use of the Products following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. If you have any questions regarding these Terms, you can contact Koya by email at email@example.com
1. Overview, Eligibility, Customer Service, Term and Termination
(a) Overview and Relation to Other Agreements. These Terms govern your use of the Products. Certain features of the Products may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, and rules are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Products.
(b) Eligibility. You may use the Services only if you can form a binding contract with Koya, and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. The Services are not available to any users previously prohibited from using the Services by Koya.
(c) Customer Service. If you have any questions or concerns regarding the Device, the Services, or these Terms, please contact Koya by email at firstname.lastname@example.org
(d) Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Products, or until terminated in accordance with the provisions of these Terms. At any time, Koya may (i) suspend or terminate your rights to access or use the Products, or (ii) terminate these Terms with respect to you if Koya in good faith believes that you have used the Products in violation of these Terms, including any incorporated guidelines, and terms or rules.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Products will automatically terminate.
(a) Your Account. To use certain Services, you may have to register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Products will not violate any U.S. or other applicable law or regulation. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Koya of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Koya is not liable for any loss or damage arising from your failure to comply with the above requirements.
3. Access to Services
(a) Access and Use. Subject to these Terms, Koya grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by, if available (i) using the Web Apps in connection with, and solely for the purpose of, using the Device or otherwise accessing a service explicitly provided by Koya for your use (the “Permitted Purpose”), and/or (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose. Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
(b) Automatic Software Updates. Koya may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Products, including the Embedded Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Products. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Products and you agree to promptly install any Updates that Koya provides. Your continued use of the Products is your agreement to these Terms with respect to the Products.
(c) User Submissions. The Services may provide you with the ability to create, upload, submit, disclose, distribute or otherwise post (hereafter, “posting”) content (including personal health information), videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, works of authorship or other information related to the Products (collectively, “User Submissions”). You represent and warrant to us that you have the legal right to post such User Submissions and that doing so will not violate any law or infringe upon or violate the rights of any person or entity.
You understand that all information posted through the Services is the sole responsibility of the person from which (or from whose Account) such content originated and that Koya will not be liable for any errors or omissions in any content; and that Koya cannot guarantee the identity of any other users with whom you may interact in the course of using the Services.
Koya does not endorse and has no control over any User Submissions. Koya cannot guarantee the authenticity of any data which users may provide about themselves.
For purposes of these Terms, the term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, materials, data (obtained about you through the Services or from third parties), text, photographs, images, software, scripts, art, graphics, logos, button icons and interactive features generated, provided, or otherwise made accessible by or to Koya or its partners on or through the Services. Koya has no obligation to monitor the Sites, Services, Content, or User Submissions. Koya may remove any Content or User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission or in order to comply with applicable laws), or for no reason at all. You understand that Koya shall have the right, but not the obligation, to record or monitor for quality assurance and training purposes all telephonic, e-mail and other forms of communication. By accepting these Terms, you consent to any such recording or saving.
(d) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Products; (iii) you agree not to access the Products in order to build a similar or competitive product or service; (iv) except as expressly stated herein, no part of the Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Device, the Embedded Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Device or the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Koya; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including patent, copyright and trademark notices) which may be contained in or displayed in connection with the Products. Any future release, update, or other addition to the functionality of the Products shall be subject to these Terms.
(e) Open Source. Certain items of independent, third party code may be included in the Services that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
(g) Security. Koya cares about the integrity and security of your personal information. However, Koya cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(h) Modification. Koya reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Koya will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(i) Access Outside Certain Countries. Although the Sites are accessible worldwide, the Products provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from or use the Products outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Products may not be designed for use outside of the United States and some or all of the features of the Products may not work or be appropriate for use in such a country. To the extent permissible by law, Koya accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Products outside of the United States. You will be bound by these Terms wherever you access or use the Products.
4. Agreed Usage and Limitations of Koya Services
(a) Intended Use of Services. The Services are intended to be accessed and used for non-time-critical information in connection with your use of a Device. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Koya’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Koya is not responsible for any damages allegedly caused by the failure or delay of the Services.
(b) Use the Services At Your Own Risk. Our goal is to provide helpful and accurate information in connection with the Products, but we make no endorsement, representation, warranty, or covenant of any kind about any information, services, or recommendations made in connection with the Products (“Product Information”), or that your use of the Products will result in a decreased level of pain. The Product Information is provided “as-is” and “as available.” You agree that it is your responsibility to educate yourself about how to interpret and respond to the Product Information. The accuracy of the data collected and presented through the Products is not intended to match that of medical devices or scientific measurement devices. You expressly acknowledge and agree that Koya is not responsible or liable for the accuracy, reliability, effectiveness, or correct use of Product Information. If you rely on any Product Information, you do so solely at your own risk.
(c) Consult Your Doctor. The Products are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical condition, consult your doctor before using the Products. If you experience a medical emergency, stop using the Products and Product Information, and consult with a medical professional. You expressly acknowledge and agree that Koya is not responsible for any health problems that may result from your use of the Products. Any use of the Products is solely at your own risk. Prolonged contact with the Device may contribute to skin irritation or allergies in some users. To reduce irritation, follow four simple wear and care tips: (1) keep it clean; (2) keep it dry; and (3) don’t wear it too long. For more information, refer to the User Manual that came with the Device. If you notice any skin irritation, remove the Device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor. If you feel soreness, tingling, numbness, burning or stiffness while or after wearing the Device, please discontinue use.
(d) Product Guidelines. Please read and comply with all safety notices that accompany your Device. You represent and warrant that you will use and maintain the Device in accordance with Koya’s Product Guidelines as may be made available from time to time through the Services, and any other instructions provided by Koya..
(e) System Requirements. Certain aspects of the Products will not be accessible without: (i) a working Bluetooth connection to communicate between your mobile client and the Device; (ii) mobile clients such as a supported phone or tablet (required for some functionality); (ii) the Mobile App; and (iv) other system elements that may be specified by Koya. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Products may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Koya may activate communication protocols on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Products, enable communication with Products, and enable certain features.
(f) Your Warranties. You warrant, represent and agree that you will not upload, download, post, submit or otherwise distribute or facilitate distribution of any content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Koya; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
(g) Data Protection and Privacy Laws. Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products. You agree that you (and not Koya) are responsible for ensuring that you comply with any applicable laws when you use the Products.
5. Limitations of Products Due to Third Parties
(a) General. The Products may rely on or interoperate with third party products and services. These third party products and services are beyond Koya’s control, but their operation may impact or be impacted by the use and reliability of the Products. You acknowledge and agree that: (i) the use and availability of the Products may be dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Products operate, and (iii) Koya is not responsible for damages and losses due to the operation of these third party products and services.
(b) Third Party Service Providers Used By Koya. You acknowledge that Koya uses third party service providers to enable some aspects of the Products – such as, for example, data storage, synchronization, and communication through Amazon Web Services, third party purchase and payment services through Shopify and Stripe, and mobile device notifications through mobile operating system vendors and mobile carriers. YOU AGREE NOT TO RELY ON THE PRODUCTS FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
(e) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Koya and not with an App Store and that Koya, and not the App Store, is solely responsible for the Mobile Apps and content thereof. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply. Koya is responsible for providing any maintenance and support services with respect to the Mobile Apps and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Apps. Koya is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Mobile Apps to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for the Mobile Apps to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the Mobile Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Koya's sole responsibility. You and Koya acknowledge that Koya, and not the App Store, is responsible for addressing any claims relating to the Mobile Apps or your possession and/or use of that Mobile Apps, including, but not limited to: (1) product liability claims; (2) any claim that the Mobile Apps fail to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. You and Koya acknowledge that, in the event of any third party claim that the Mobile Apps infringe or your possession and use of the Mobile Apps infringe that third party's intellectual property rights, Koya, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store's terms and policies and the Usage Rules) when using the Mobile Apps. Koya and you acknowledge and agree that the App Stores and their subsidiaries, are third party Koya of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, the App Stores will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
(f) Third Party Website Links and Referrals. The Services may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Koya provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites and Referred Vendors is at your own risk.
6. Ownership and Intellectual Property
(a) Koya Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Products are owned by Koya or its affiliates or our licensors. Your possession, access, and use of the Products do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Koya and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services (including the Sites) on to your own computer or mobile device for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own website without the written consent of Koya. You must have a license from us before you can post or redistribute any portion of the Products. Other than with respect to User Submissions, Koya retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
(b) Feedback. You may choose to, or Koya may invite you to submit comments, suggestions, or ideas about the Products, including how to improve them (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place KOya under any fiduciary or other obligation. Koya may use, copy, modify, publish, or redistribute the Ideas for any purpose and in any way without any compensation to you. You also agree that Koya does not waive any rights to use similar or related ideas previously known to Koya, developed by its employees, or obtained from other sources.
(c) Product Data. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display, or otherwise use any and all data (including all related intellectual property rights) collected by the Products (including the Embedded Software) for any and all purposes. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any such data. For clarity, the foregoing license grant to Koya does not affect your ownership of, or right to grant additional licenses to, such data, unless otherwise agreed in writing.
You agree to defend, indemnify and hold Koya and its parents, subsidiaries, affiliates, officers, employees, agents, partners, licensors and suppliers (the “Koya Parties”) harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of: (i) your use of the Products, (ii) your violation of these Terms, (iii) any User Submissions or Ideas you provide; or (iv) your violation of any law or the rights of any third party. This provision does not require you to indemnify any of the Koya Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Products. Koya reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Koya and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Koya’s prior written consent. Koya will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. Warranty Disclaimers
(a) THE PRODUCTS ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND THE KOYA PARTIES 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, ACCURACY, AND NON-INFRINGEMENT. This Section 9 does not affect in any way our return policy or limited warranty for goods purchased on the Sites. If for any reason you are not satisfied with a purchase you make on the Sites, please return it in accordance with the terms of our Return Policy and Warranty located at: http://www.koyamedical.com/warrantyandreturn
(b) THE KOYA PARTIES MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE PRODUCTS: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KOYA OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
(c) KOYA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE KOYA PRODUCTS) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND KOYA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
(d) KOYA MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND KOYA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. KOYA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
(e) THE PRODUCTS ARE FOR NON-EMERGENCY PURPOSES ONLY. IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, OR IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN EMERGENCY ROOM. THE PRODUCTS ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICE. YOU MAY ONLY USE THE PRODUCTS IF YOU RESIDE IN THE UNITED STATES.
(f) THE PRODUCTS DO NOT INCLUDE THE PROVISION OF MEDICAL CARE BY KOYA. KOYA’S REPRESENTATIVES ARE NOT LICENSED PHYSICIANS OR LICENSED HEALTH CARE PROVIDERS. KOYA DOES NOT EMPLOY OR CONTRACT WITH PHYSICIANS TO PROVIDE MEDICAL CARE TO YOU. KOYA DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. OUR PRODUCTS ARE NOT INTENDED TO BE, AND DO NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT AND ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY. ANY CONTENT ACCESSED THROUGH PRODUCTS ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, INTERACTIONS OR ADVERSE EFFECTS. THE CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION OR THE USE (OR FREQUENCY) OF ANY MEDICATION OR MEDICAL DEVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH OUR PRODUCTS. TO THE EXTENT YOU RECEIVE MEDICAL CARE CONSEQUENT TO THE PRODUCTS, YOUR TREATING MEDICAL PROFESSIONAL IS RESPONSIBLE FOR OBTAINING YOUR INFORMED CONSENT TO ANY MEDICAL DIAGNOSIS OR TREATMENT. THIS DIAGNOSIS OR TREATMENT IS SEPARATE FROM AND UNRELATED TO THE PRODUCTS PROVIDED BY KOYA. KOYA DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR ANY PARTICULAR DRUG OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
10. Limitation of Liability
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
YOU UNDERSTAND AND AGREE THAT: (A) IN NO EVENT WILL THE KOYA PARTIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF THE KOYA PARTIES KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE KOYA PARTIES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED ONE-HUNDRED DOLLARS ($100.00). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. KOYA DISCLAIMS ALL LIABILITY OF ANY KIND OF KOYA’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL KOYA BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN KOYA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN KOYA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN KOYA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF A PHYSICIAN OR OTHER LICENSED HEALTH CARE PROVIDER ARISING FROM OR RELATED TO MEDICAL SERVICES YOU MAY RECEIVE CONSEQUENT TO THE USE OF THE PRODUCTS. WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY LICENSED MEDICAL PROFESSIONAL OR ANY OTHER PARTY.
11. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Koya and limits the manner in which you can seek relief from us.
(a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Products or to any aspect of your relationship with Koya, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Koya may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
IF YOU AGREE TO ARBITRATION WITH KOYA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST KOYA ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST KOYA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THESE TERMS, INCLUDING THIS ARBITRATION AGREEMENT.
(b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: email@example.com The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Koya will pay them for you. In addition, Koya will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Koya will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Koya. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
(d) Waiver of Jury Trial. YOU AND KOYA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Koya are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in subsection (a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 14(a).
(f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Koya.
(i) Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Koya makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Koya.
12. Digital Millennium Copyright Act
It is our policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Koya by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Koya’s Copyright Agent for notice of claims of copyright infringement is as follows:
Attn: Copyright Agent
Koya Medical, Inc.
2461 Peralta St.
Oakland CA 94607
By phone: 415-851-0337
“Confidential Information” shall mean the Products, and all other information disclosed to you that Koya characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least three (3) years after termination of these Terms. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Koya. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Koya in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these Terms, and will cooperate with Koya in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you shall (i) immediately notify Koya prior to such disclosure to allow Koya an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Koya in protecting against any such disclosure and obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
(a) Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Koya agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
(b) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the provisions of the Arbitration Agreement, Koya may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(c) Severability. If any part of these Terms becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect.
(d) Survivability. The provisions of these Terms which by their nature are intended to survive termination or expiration of these Terms shall survive the termination or expiration of these Terms including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
(e) Waiver. Failure or delay by us to enforce any of these Terms will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
(f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Koya’s prior written consent. These Terms may be assigned by Koya without restriction. These Terms are binding upon any permitted assignee.
(g) Electronic Communications. You are communicating with Koya electronically when you create your Koya Account, use the Services or send email to Koya. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you register for an Account or otherwise provide your email address, we collect and store your email address. From that point forward, your email address is used to send you information about Koya’s products and services unless you opt-out of such emails using the opt-out link in the emails.
(h) Notifications. Koya may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on the Services. Koya is not responsible for any automatic filtering you or your network provider may apply to email notifications. Koya recommends that you add @koyainc.com email addresses to your email address book to help ensure you receive email notifications from Koya.
(i) Force Majeure. Koya will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
(k) Trademarks. All trademarks, logos, and service marks (“Marks”) displayed on the Products are the property of Koya or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Koya or such respective holders. Koya reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
(l) Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(m) Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
(n) Contact. You may contact Koya at the following address: Koya Medical, Inc., 2461 Peralta St. Oakland CA 94607 or call 415-851-0337.