DO NOT SHARE YOUR KINSA USERNAME OR PASSWORD WITH ANYONE. You are responsible for taking steps to protect yourself from unauthorized use of your username or password. We are not responsible for breaches of confidentiality or security caused by you or an independent third party. You expressly assume the risk of an unauthorized disclosure or intentional intrusion, or of any delay, failure, interruption, or corruption of data or other information transmitted in connection with your use of our Services or any service related thereto resulting from your actions or omissions.
DO NOT SEND URGENT OR EMERGENCY MESSAGES USING OUR SERVICES OR APPLICATION. IN CASE OF EMERGENCY YOU SHOULD CALL 911 (U.S. and Canada), OR OTHER APPLICABLE EMERGENCY SERVICE NUMBER.
Our Services contains software regulated by the U.S. Food and Drug Administration (“FDA”) and other applicable foreign agencies as a medical device. Specifically, the software associated with reading a temperature using the Kinsa Smart Thermometer is regulated by the FDA. Kinsa Smart Thermometers are intended to measure the human body temperature orally, rectally, under the arm, or on the forehead, and the thermometers are reusable for clinical or home use on individuals of all ages. We ensure that our thermometers meet both the ASTM standards required by the FDA for electronic thermometers and the ISO standards for general and technical requirements for electronic thermometers.
Medical Advice Disclaimer
All Content (defined below) shared through the Services is for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis or treatment from an appropriately qualified and licensed physician or other healthcare provider. Always seek the advice of a qualified healthcare provider with any questions you may have regarding your health, including any symptoms that are severe or concerning. If you are having a medical emergency, call 911 (U.S. and Canada) or the number for the local emergency ambulance service. Never disregard professional medical advice or delay seeking medical treatment because of something you have read on or accessed through this application.
Medical information provided through the Services doesn't apply to everyone. The Services does not provide advice for all possible medical complications that may arise from fever and related symptoms. The information provided within the Services is not applicable to certain individuals with special medical considerations including, but not limited to, those who:
- Are pregnant
- Are age 60 or older
- Have sickle cell disease
- Have had a splenectomy or organ transplant
- Are HIV positive
- Have cancer
- Are taking chronic steroids, chemotherapy, or immunosuppressant medications
- Are unvaccinated or under-vaccinated
- Have a chronic condition, such as kidney, lung, liver, or heart disease
- Have a history of epilepsy
- Have any other medical condition that may require treatment from a qualified healthcare provider
Kinsa shares medical information about symptoms, treatments, and medical conditions from trusted medical information sources that have been reviewed by our team of clinicians. Our care recommendations in our Services are based on the adult and pediatric telephone protocols published by the American Association of Pediatrics, with supplemental information from other trusted sources including but not limited to:
- Pediatric Telephone Protocols, 16th Edition, by Barton D. Schmitt, MD
- Adult Telephone Protocols, 4th Edition, by David A. Thompson, MD, FACEP, American Academy of Pediatrics, 2018
- Centers for Disease Control and Prevention (CDC)
- National Institutes of Health (NIH)
- Food and Drug Administration (FDA)
- World Health Organization (WHO)
- American Migraine Foundation
- Mayo Clinic, USA
- National Cancer Institute (NCI)
- National Library of Medicine (NLM)
- FAAP, American Academy of Pediatrics, 2018
- United States Surgeon General
Access to Services and Application
Subject to the terms and conditions of these Terms, we grant to you a limited, personal, non-exclusive, non-sub licensable, non-transferable, and revocable license to access and use the Services and the Content made available therein only in the manner presented by us and only for your personal and non-commercial use.
You may be able to access our Services without having to register any details with us.
Kinsa may make available to you updates, upgrades, supplements and add-on components (if any) of the Services, including bug fixes, service upgrades (parts or whole), and updates, the removal of, or enhancements and feature improvements to any Services (including entirely new versions), (collectively “Updates”) after the date you obtain your initial copy of the Services. These Terms apply to all and any component of the Updates, unless we provide other terms along with such Updates.
Use of Your Information
Use of Services and Application
Our Services, and all images, data, text, audios, videos, photographs, custom graphics, logos, button icons, descriptions and all other material provided by Kinsa through the Services (“Content”) and the collection and compilation and assembly thereof are the exclusive property of Kinsa or its licensors, and are protected by U.S. and international copyright laws.
The Content may be used for informational purposes only. Any other use of such contents, including the reproduction, modification, distribution, transmission, republication, display or performance of the contents without our prior written consent is expressly forbidden.
Any trademarks or service marks appearing anywhere on our Services are the property of their respective owners. To the extent any product name or logo does not appear with a trademark symbol does not constitute a waiver of any and all intellectual property rights that Kinsa or its businesses have established in any of its products, Services, features, or service names or logos.
You may not use, reproduce, modify, transmit, display, publish, sell, create derivative works, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any Content for commercial profit or gain. Nothing in these Terms or on the Services shall be construed as conferring any intellectual property or other proprietary rights to you. You agree to observe copyright and other applicable laws and may not use the Content in any manner that infringes or violates the rights of any person or entity. We reserve all rights to the Content and this Services.
As a condition of your use of the Services, you will not use the Services or any Content, for any purpose that is unlawful in any applicable jurisdiction where our Services are being used, or prohibited by these terms, conditions, and notices, and you agree to abide by the terms and conditions set forth in the “User Conduct” section below. You may not use the Services contents or services in any manner that could damage, disable, overburden, or impair any of our equipment or interfere with any other party's use and enjoyment of the Services or any Content. You may not attempt to gain access to any portion of the Services or any of its Content, other than those for which you are authorized.
As a condition of your use of the Services, YOU AGREE NOT TO, AND SHALL NOT ENABLE OR PERMIT OTHERS TO, COPY, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OR ALGORITHMS OF, OUR APPLICATION, THE KINSA SMART THERMOMETER, AND ANY OTHER SOFTWARE RELATED TO THE USE OF THE KINSA SMART THERMOMETER IN ANY WAY WHATSOEVER (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation). For purposes of clarity, this includes but is not limited to determining composition or components, and analyzing the methods of communication, signal processing and inputs/ outputs from, between, and to the Kinsa Smart Thermometer, a mobile device, and the Services or any related software.
YOU MAY NOT MODIFY THE SERVICES, INCLUDING THE SOFTWARE CONTAINED IN ANY KINSA DEVICE, IN ANY MANNER THAT WILL PERMIT SUCH SOFTWARE TO WORK WITH, OR OTHERWISE PROVIDE INFORMATION TO, ANY NON-KINSA DEVICE, APPLICATION, OR WEBSITE.
YOU MAY NOT MODIFY THE SERVICES IN ANY MANNER DESIGNED TO PROVIDE INACCURATE INFORMATION TO KINSA, INCLUDING WITHOUT LIMITATION, ALTERED THERMOMETER READINGS.
While reasonable effort is made to ensure the timeliness and accuracy of the Services and Content, we make no warranties either express or implied, and assume no liability or responsibility for the completeness, use, accuracy, reliability, correctness, timeliness or usefulness, of any of the results obtained from such use.
While reasonable effort is made to ensure that all Content provided on the Services does not contain computer viruses and/or harmful materials, you should take reasonable and appropriate precautions to scan for computer viruses or otherwise protect your computer or mobile device, and you should ensure that you have a complete and current backup of the applicable items on your computer or mobile device.
We take reasonable steps to ensure that our Services is available 24 hours every day, 365 days per year. However, websites and mobile applications do sometimes encounter downtime due to server and other technical issues. Therefore, we will not be liable if our Services is unavailable at any time.
Our Services may be temporarily unavailable due to issues such as system failure, maintenance or repair, or for reasons beyond our control. Where possible, we will try to give our users advance warning of maintenance issues, but shall not be obliged to do so.
The Services may contain forums, chat areas, message boards, and other message or communication facilities designed to allow you to communicate with the Internet community or with a group. You are solely responsible for all content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services. You agree to use the Services only to post, send and receive messages and content that are proper and related to the particular service. Among other actions, when using the Services, you affirm, represent, and warrant that you will not post, send, submit, publish, or transmit in connection with the Services any material that:
- you do not have the right to post, including proprietary material of any third party, such as files containing software or other third party material protected by intellectual property laws (or by rights of privacy or publicity);
- violates or may violate any law, advocates illegal activity or discusses an intent to commit an illegal act;
- does not pertain directly to the Services;
- threatens or abuses others, libels, defames, invades privacy, stalks, or is obscene, pornographic, vulgar, indecent, racist, abusive, harassing, threatening or offensive;
- seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- harvests or otherwise collects information about others, including e-mail addresses, without their consent;
- impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
- falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is permissibly uploaded;
- advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, or soliciting goods or services) except as may be specifically authorized on the Services;
- solicits funds, advertisers or sponsors;
- includes programs that contain viruses, worms or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or network;
- disobeys any policy or regulations, including any code of conduct or other guidelines, established from time to time regarding use of Services or any networks related to the Services; or
- contains links to other websites or software containing content that falls within the descriptions set forth above.
We may fully cooperate with any law enforcement authorities or court order requiring us to disclose the identity or other details or any person posting materials to our Services in breach of this Section.
We reserve the right, but shall not be obligated, to monitor use of the Services to determine compliance with this Agreement, as well as the right to remove or refuse any information for any reason. Materials uploaded to the Services by users may be subject to limits on use, reproduction or dissemination and you are responsible for abiding by such limitations with respect to your submissions.
WE CANNOT AND DO NOT ASSURE THAT OTHER USERS ARE OR WILL BE COMPLYING WITH THE FOREGOING CODE OF USER CONDUCT FOR THE SERVICES OR ANY OTHER PROVISIONS OF THESE TERMS, AND, AS BETWEEN YOU AND US, YOU HEREBY ASSUME ALL RISK OF HARM OR INJURY RESULTING FROM ANY SUCH LACK OF COMPLIANCE.
If you believe any material available via the Service infringes a copyright you own or control, you may file a notification of such infringement by email to[email protected]. Kinsa will act expeditiously to remove infringing or unlawful material.
In accordance with applicable law, Kinsa has also adopted a policy of terminating, in appropriate circumstances and in our sole discretion, users who are deemed repeat infringers. Kinsa may also, in its sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you know or suspect that any of the content or materials on the Services have been used or copied in a way that constitutes U.S. copyright infringement, please send notice to our designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:
- A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
- A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The designated agent for notice of copyright infringement claims may be reached as follows:
Copyright Agent Name: DMCA Agent, Kinsa Inc.
Address: 535 Mission St, 18th floor, San Francisco, CA, 94105
Phone: (+1) 917-426-3860
You shall not use our Services while distracted or preoccupied, such as when operating a motor vehicle. You should access our Services only with due regard for your own safety and the safety of others.
Links to Services and Application
If you would like to link to our Services or Application, you may only do so on the basis that you link to, but do not replicate, any page of our Services or portions of our Application, and subject to the following conditions:
(a) you do not in any way imply that we are endorsing any services or products unless this has been specifically agreed with us;
(b) you do not misrepresent your relationship with us or present any false information about us;
(c) you do not link from a website that is not owned by you; and
(d) your website does not contain content that is offensive, controversial, infringes any intellectual property rights or other rights of any other person or does not comply in any way with applicable law.
If you choose to link our Services in breach of this Section, you shall fully indemnify us for any loss or damage suffered as a result of your actions.
Terms of Sale for Subscription Services
Subscription Services. Subscription Services include all paid digital subscription services purchased through the Services. Kinsa reserves the right to modify the Content, type, and availability of any Subscription Service at any time. If you do not cancel your subscription for the Subscription Service after the modifications become effective, you agree to the modifications. If you purchase a recurring subscription, your Subscription Service subscription, which may start with a promotional rate or free trial, will auto-renew at the frequency stated at the time of your order unless cancelled. You will be charged your first subscription fee and any applicable taxes on the date you purchase your Subscription Service subscription or after your free trial ends (if applicable). Your Subscription Service subscription will automatically continue at the stated interval, and you will continue to be charged at the stated price (including any applicable taxes) at the beginning of each billing cycle (“Billing Period”) unless prior to the end of your current Billing Period: (a) you terminate your account; (b) you cancel your subscription (as described below); (c) we decline to renew your subscription; or (d) these Terms are otherwise properly terminated as expressly permitted herein. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your Subscription Service subscription. We will charge the subscription fee at the commencement of your subscription or, if applicable, at the end of your free trial period, and automatically on the first calendar day of each Billing Period thereafter unless and until your subscription is cancelled. When you purchase a stand-alone product, such as a gift subscription, we will charge your payment method at the time of purchase.
Recurring Billing. If you submit a credit, debit, or payment account number, or other payment information upon registration, at the time of purchase, or otherwise, you authorize, give us and our third party providers permission, and direct us and our third party providers to retain such information and to charge all fees to such payment method. Our third party payment provider may be able accept payments in multiple currencies and would convert and deposit funds in US dollars, subject to a conversion fee. You agree to promptly notify us of any changes to the credit card or other payment method you provided while subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you. In the course of your use of the Subscription Services, we and our payment service provider may receive and implement updated credit card information from your credit card issuer in order to prevent your subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to us and our payment service provider at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the updated service. Should you desire to do so, please contact your credit card issuer. All prices are in United States dollars, unless otherwise stated.
Subscription Fee Changes. Except as otherwise set forth herein, we reserve the right to change subscription fees for any of our subscriptions at any time. If the regular fee for your subscription increases from the fee stated at the time of your initial order, we will notify you before applying the change to your subscription or charging you in connection with an automatic renewal. You will have an opportunity to cancel your subscription at that time. If you do not cancel your subscription, you will be charged the new subscription fee at your next Billing Period.
Cancellations. You can cancel your subscription at any time by going to your account. You must cancel your subscription before it renews each Billing Period to avoid being billed the next Billing Period's subscription fees to your payment method. Cancellation only applies to future charges associated with your subscription, and you will not receive a refund for the current Billing Period. Your cancellation will become effective at the end of your current Billing Period, and you will continue to have access to your subscription for the remainder of the Billing Period (except that if you cancel your subscription during a free trial period, your cancellation may become effective immediately). Any purchases of a Subscription Service subscription through a third party (e.g., app store), are subject to that third party's cancellation policies and procedures.
Refunds. EXCEPT AS OTHERWISE STATED HEREIN OR REQUIRED BY APPLICABLE LAW, YOUR SUBSCRIPTION FEE IS NONREFUNDABLE. If you cancel your subscription, you are not entitled to receive any refund or credits for the time remaining in your Billing Periods, and you will continue to have access to your subscription until the end of your current Billing Period (unless we provide you with a refund or credit). We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
YOU ACKNOWLEDGE THAT THE CONTENT AND OUR SERVICES IS PROVIDED “AS IS” FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED, OR TO BE CONSTRUED, AS MEDICAL ADVICE, DIAGNOSIS AND TREATMENT, AND IS NOT A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED HEALTH CARE PROFESSIONALS WHO ARE FAMILIAR WITH YOUR INDIVIDUAL MEDICAL NEEDS. You acknowledge that you understand and assume full responsibility for the risks associated with the use of our Services and the services offered by each, and that the use of such is at your sole risk. Kinsa is not liable to you, or any third party, for any decision made or action taken by you or any third party based on information contained on our Services and the services offered; or, due to reliance upon information contained on our Services and the services. We disclaim any liability for the need for services or replacing equipment or data resulting from your use of the Services. While reasonable effort is made to ensure smooth and continuous operation, we do not warrant the Services will operate error free.
All information on our Services and Application is of a general nature and is furnished for your knowledge and understanding and as an informational resource only. The Content could include technical inaccuracies or typographical errors. Changes are periodically added to the Content and our Services. We may make improvements and/or changes to any of the products depicted or described herein at any time. We expressly disclaim any responsibility or liability for any adverse consequences or damages resulting from your use of the Services or reliance on the Content.
EXCEPT AS EXPRESSLY STATED BY KINSA IN OUR WARRANTY, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH REGARD TO ANY PRODUCTS, INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICES, INCLUDING, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL OR IN WRITING, OR IN ELECTRONIC FORM.
Limitation of Liability
YOUR USE OF OUR SERVICES IS ENTIRELY AT YOUR OWN RISK. WE WILL NOT BE RESPONSIBLE TO YOU OR TO ANY THIRD PARTIES FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OR INJURY YOU MAY INCUR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES, OR YOUR RELIANCE ON OR USE OF THE SERVICES OR CONTENT, THE INFORMATION, OR SERVICES PROVIDED, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE, OR ANY OF THE DATA OR OTHER MATERIALS TRANSMITTED THROUGH OR RESIDING ON OUR SERVICES, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF WE HAVE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. This limitation of liability shall be enforced to the extent permissible under applicable law.
You agree to defend, indemnify, and hold us, our officers, directors, employees, volunteers, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from or alleged to result from; (1) your use of and access to the Services, (2) your violation of these Terms, or (3) your violation of any third party right, including without limitation any trademark, copyright or other proprietary or privacy right.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you.
We make no representations that the Content or the Services are appropriate or may be used or downloaded in your jurisdiction. Access to the Services and/or the Content may not be legal in certain jurisdictions. If you access the Services, you do so at your own risk and are responsible for compliance with the laws of the jurisdiction from which you access the Services.
These Terms, and all disputes arising hereunder, shall be construed and interpreted under the laws of the State of California, and applicable United States federal laws. However, some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer's country. This paragraph doesn't override those laws. Use of our Services and Application constitutes agreement of the user to the jurisdiction of the state and federal courts located in San Francisco, CA.
The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.
Our Services are subject to the United States export control laws and regulations, and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import any data on our Services, as may be required.
In the event that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, you agree that the Services is provided with restricted rights. In such a case, the Services and the corresponding documentation are “Commercial Items,” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (i) only as Commercial Items and (ii) with only those rights as are granted to all other licensees and end users pursuant to these Terms.
IF YOU'RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS AND CLASS ACTION RESTRICTIONS:
Agree to Arbitrate. You and Kinsa agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this MANDATORY ARBITRATION PROVISIONS AND CLASS ACTION RESTRICTIONS section, including its enforceability, revocability, or validity.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by submitting an email (from the email associated with your Kinsa account (if applicable)) to Kinsa containing your name and address with “Opt-out of Agreement to Arbitrate” in the subject line within 30 days of first registering your account or the first posting of these Terms. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains binding.
Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco (CA), or any other location Kinsa agrees to.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Kinsa will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate. Either you or Kinsa may assert claims, if they qualify, in small claims court in San Francisco (CA). Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in San Francisco County, California to resolve your claim.
NO CLASS ACTIONS. You may only resolve disputes with us 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. If this specific paragraph is held unenforceable for your claim, then the entirety of this MANDATORY ARBITRATION PROVISIONS AND CLASS ACTION RESTRICTIONS section will not apply to the class action claim.
Last Updated: June 16, 2021
1. There is no fee from Kinsa to receive text messages. Standard message and data rates may apply- this can be checked with your mobile service provider. Charges are billed and payable to your mobile service provider or deducted from your prepaid account. Consent is not a requirement for purchase.
2. Data obtained from you in connection with this SMS service may include your mobile phone number, your carrier's name and the date, time and content of your messages. We may use this information to contact you and provide the services you request from us. Alerts sent via SMS may not be delivered if the mobile phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of the wireless operator may interfere with message delivery, including the customer's equipment, terrain, proximity to buildings, foliage, and weather. Wireless operators do not guarantee message delivery and will not be held liable for delayed or undelivered messages.
4. Kinsa will not be liable for any delays in the receipt of any SMS message as delivery is subject to effective transmission from your network operator.
5. By subscribing to Kinsa alerts, the user consents to receive automated text messages regarding Kinsa's FLUency school health program from Kinsa. Recurring messages. Standard message & data rates may apply.
6. If you have any questions, text HELP, AIDE (Canada), or INFO(Canada) to 24020 or contact us at (+1) 917-426-3860 or[email protected]. To stop receiving messages, text STOP or ARRET (Canada) to 24020.
Limitations and Exclusions of Liability, Warranties, and Disclaimers for Kinsa Thermometers
Kinsa warrants that each Kinsa thermometer (“Thermometer”) shall be free from defects in materials and workmanship under normal use (“Warranty”) for a period of one(1) year from the date of purchase (the “Warranty Period“). This Warranty does not apply to damage resulting from commercial, abusive, unreasonable use or supplemental damage. Defects that are the result of normal wear and tear will not be considered manufacturing defects under this Warranty. This Warranty does not cover damage resulting from any unauthorized attempts to repair or from any use not in accordance with the instruction manual.
If a hardware defect arises and a valid claim for breach of the Warranty is received by Kinsa within the Warranty Period, as Kinsa's sole obligation for a breach of the Warranty, Kinsa will, at its option and to the extent permitted by law, either (1) repair the Thermometer at no charge, using new or refurbished replacement parts, (2) replace the Thermometer with a new or refurbished Thermometer, or (3) refund you the purchase price of theThermometer. If Kinsa repairs or replaces the Thermometer, the repaired or replaced Thermometer will continue to be warranted for the remaining time of the original Warranty Period.
KINSA IS NOT LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE RELATING TOTHE USE OF A THERMOMETER. EXCEPT FOR THE WARRANTY, KINSA DISCLAIMS ALL OTHER WARRANTIES. FURTHERMORE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THIS PRODUCT IS LIMITED IN DURATION TO THE DURATION OFTHIS WARRANTY.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. This Warranty gives you specific legal rights, and you also may have other rights which vary from jurisdiction to jurisdiction. This Warranty applies only to the original purchaser of this product from the original date of purchase. Call us at (+1) 917-426-3860 or e-mail:[email protected]. Please be sure to specify a model number. NOTE: IF YOU EXPERIENCE A PROBLEM, PLEASE CONTACT CONSUMER SERVICE FIRST OR SEE YOUR WARRANTY. DO NOT RETURN THE PRODUCT TO THE ORIGINAL PLACE OF PURCHASE. DO NOT ATTEMPT TO OPEN THE DEVICE HOUSING YOURSELF, UNLESS EXPRESSLY PERMITTED IN THE INSTRUCTION TO CHANGE THE BATTERY, DOING SO MAY VOID YOUR WARRANTY AND CAUSE DAMAGE TO THE PRODUCT OR PERSONAL INJURY.
YOU SHALL NOT, NOR PERMIT OTHERS TO, COPY, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, OR OTHERWISE ATTEMPT TO ACCESS SOFTWARE RELATED TO THE USE OF THE KINSA SMART THERMOMETER IN ANY WAY WHATSOEVER (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation). For purposes of clarity, this includes but is not limited to determining composition or components, and analyzing the methods of communication, signal processing and inputs/ outputs from, between, and to the Kinsa Smart Thermometer, a mobile device, and the Services or any related software.
YOU MAY NOT MODIFY THE SOFTWARE CONTAINED IN ANY KINSA DEVICE, IN ANY MANNER THAT WILL PERMIT SUCH SOFTWARE TO WORK WITH, OR OTHERWISE PROVIDE INFORMATION TO, ANY NON-KINSA DEVICE, APPLICATION, OR WEBSITE.
YOU MAY NOT MODIFY THE SERVICES IN ANY MANNER DESIGNED TO PROVIDE INACCURATE INFORMATION TO KINSA, INCLUDING WITHOUT LIMITATION, ALTERED THERMOMETER READINGS.
Kinsa Insights General Terms & Conditions
1. SERVICES: Kinsa shall provide to Client the data, documentation, software, analysis, applications, and/or consultancy services (collectively, the “Services”) described in each mutually executed statement of work or other form of document referencing these General Terms (each, an “SOW”). “Client” shall mean the client set forth in the applicable SOW. As used herein, “Agreement” shall mean any relevant SOW, together with these Kinsa Insights General Terms & Conditions (“General Terms”) where incorporated therein by reference, and any schedules, riders, addenda, or supplemental terms attached thereto or referenced therein (collectively, “Supplemental Terms”). Client shall provide all relevant information, instructions, and/or access to Client's information technology systems reasonably required for Kinsa to provide the Services. Kinsa will determine the methodology, means, and approach for the provision of any and all Services and projects in its sole discretion.
2. LICENSE: Kinsa grants to Client a limited, non-exclusive, non-sublicensable, non-transferable license to use the Kinsa Materials contained in the Services internally and solely for its own direct benefit, and only as necessary within and/or in conjunction with such Services, subject to the restrictions set forth herein and any geographic, site, or other limitations as may be specified in the SOW. “Kinsa Materials” shall mean any and all data and/or databases (collectively, “Kinsa Data”), data models, documentation, software, source code, object code, tools, algorithms, user interface designs, methodologies, concepts, and other materials owned by or licensed to Kinsa prior to, independently of, or in conjunction with its performance of the Services or compiled, obtained, and/or generated by Kinsa in its performance of the Services, any information or materials derived from the foregoing, and all intellectual property rights therein.
3. RESTRICTIONS: Any access of Kinsa Materials by third parties shall be subject to Kinsa's prior written consent and such third party's execution of a third-party access agreement or similar agreement with Kinsa, except as may be otherwise specifically permitted pursuant to an applicable Kinsa policy. In addition, Client shall not directly or indirectly reverse engineer, decompile, disassemble, or analyze the Services for the purposes of (i) re-identifying methodologies, algorithms, processes, or procedures embedded in the Services, or otherwise used to produce the Services, (ii) identifying or isolating the information associated with specific outlets, suppliers, prescribers, or other entities or individuals not explicitly identified in any Services provided to Client, or (iii) accessing or deriving the source code for any licensed software.
4. PROPRIETARY RIGHTS: Client acknowledges and agrees that the Kinsa Materials shall remain the sole and exclusive property of Kinsa (and/or its licensors, as applicable). Kinsa does not grant, and Client does not receive, any other interest in any Kinsa Materials, Services or Deliverables, except for those rights explicitly granted under the Agreement. “Deliverables” shall mean all deliverables to be provided to Client hereunder. Notwithstanding anything to the contrary in this Agreement, Client grants Kinsa a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback (as defined below) for any and all purposes. Client agrees that it does not have to provide Feedback to Kinsa. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Client (whether in oral, electronic or written form) to Kinsa regarding the Services or Kinsa Materials. Kinsa shall retain sole and exclusive ownership of the Services and Kinsa Materials, as currently existing or modified over time using such Feedback, unless otherwise expressly agreed in writing by Kinsa in advance. Client shall not remove, alter, modify, or deface any confidential, copyright, or other proprietary notices contained on, affixed to, encoded, or recorded in any Kinsa Materials, or fail to preserve or denote all copyright and other proprietary notices with respect to, all Kinsa Materials.
5. PAYMENT: Client agrees to pay such fees as may be specified in an SOW. Unless otherwise specified in the SOW, Client shall pay the amount of each invoice from Kinsa within thirty (30) days from the date of the invoice. If Client fails to pay any amount when due, Client shall pay, in addition to the invoice amount, interest at a rate equal to the lesser of 1% month on the unpaid amounts, or the maximum amount permitted under applicable law until such amounts are paid. Client shall have the exclusive responsibility for paying all applicable taxes, duties, fees, levies, or other governmental charges payable in connection with the Services except for taxes based on Kinsa's net income. Client shall pay Kinsa for any collection or legal fees incurred by Kinsa to collect past due amounts.
6. CONFIDENTIALITY: Neither party shall communicate, disclose, or provide to any third party any information provided by one party to the other in connection with the Services which is identified at the time of its disclosure as confidential or which, by the nature or type of information, reasonably should be regarded as confidential information (collectively “Confidential Information”), except as otherwise expressly permitted in these General Terms or Kinsa policies. Client acknowledges and agrees that the Kinsa Materials are confidential to Kinsa. Each party agrees to treat the terms of the Agreement, including any pricing details, as the Confidential Information of the other party. Each party agrees to treat the Confidential Information of the other as confidential, using the same degree of care used by the receiving party to protect the receiving party's own confidential information, but in any event not less than a reasonable degree of care. Each party shall not disclose any Kinsa Materials to any person, firm, or entity other than its own employees who have a need to know such Confidential Information for purposes of which it was provided. Each party shall advise permitted recipients of Confidential Information of the confidential nature of such information. Notwithstanding the foregoing, Kinsa may add Client's name to Kinsa' published list of customers. This confidentiality provision does not apply to any information: (i) available in the public domain through no fault of the receiving party; (ii) independently developed by or on behalf of the receiving party without reference to any Confidential Information of the disclosing party; or (iii) disclosed to the receiving party without restriction by a third party having a bona fide right to do so and not having an obligation of confidence with respect to such information; provided, however, that none of the foregoing exceptions shall apply to Kinsa Data. Nothing in this Agreement shall restrict a party from disclosing any Confidential Information where the production of any such Confidential Information is compelled under process or request by a court or administrative or law enforcement agency of competent jurisdiction, provided that in each case the producing party shall ensure that such Confidential Information is afforded the highest level of protection via any available mechanisms for the protection of confidential or proprietary materials, and provided further that no disclosure of any Kinsa Data may be made in such circumstances without Kinsa's written consent.
7. DATA PROTECTION: To the extent (if any) that either party receives or provides personally identifiable information (“PII”) in the course of performing or receiving Services, the parties agree that they will comply with the data privacy laws applicable to its provision or receipt of such PII. The party providing such PII is responsible for providing, obtaining and maintaining any notices, consents or approvals necessary to make such information available to the other party for processing and use.
a. Each SOW shall become effective as of the date of any such SOW and shall continue until the expiry or earlier termination thereof. Each SOW shall be independent of any other SOW, and the expiration or termination of one SOW shall not affect any other SOW.
b. Except as may be expressly provided in an SOW, either party may terminate an SOW only as follows: (i) immediately where any license or confidentiality restrictions, intellectual property rights, data protection provisions, or payment obligations are breached by the other party, or in the case of insolvency of the other party, or (ii) upon thirty (30) days' written notice to the other party in the event of a material breach of any SOW (except in the case of force majeure) by the other party that has not been cured within such thirty (30) day period. Any breach of any provision of the Agreement shall be deemed to be a breach of the relevant SOW. Any Services and Client's license in the Kinsa Materials shall immediately terminate in the event of any termination by Kinsa pursuant to (i) or (ii) above.
c. Without prejudice to any rights or remedies available to Kinsa, in the event of any permitted termination of any SOW, Client shall pay Kinsa, at a minimum, for the Services performed through the effective date of termination and all noncancelable expenses.
d. Sections 2 (License), 3 (Restrictions), 4 (Proprietary Rights), 5 (Payment), 6 (Confidentiality), 7 (Data Protection), 9 (Warranty and Disclaimer), 10 (Limitation of Liability), and 11 (Miscellaneous) of these General Terms shall survive and remain in effect after expiration or termination of any SOW.
e. If Kinsa discontinues production or support of any Services with respect to all of its clients, Kinsa shall use commercially reasonable efforts to give Client advance written notice of any such discontinuance. If Kinsa discontinues any Services for which Client has prepaid, Client shall receive a pro-rata refund of any prepaid fees for the terminated Service not supplied to Client.
9. WARRANTY AND DISCLAIMER:
a. Warranty: Kinsa warrants that the Services shall substantially conform to the applicable Kinsa published specifications prevailing as of the time the Services are rendered (“Published Specifications”). Client shall assume sole responsibility for any use of the Services that is inconsistent with such Published Specifications. The entire liability of Kinsa, and Client's exclusive remedy for any breach of this warranty, shall be for Kinsa to use commercially reasonable efforts to correct, in accordance with Kinsa operating procedures for quality assurance, any such non-conformance which has been properly reported by Client to Kinsa in writing within 30 days of delivery of the affected Services.
b. Disclaimer: Except as set forth above, the Services, Deliverables, and Kinsa Materials are provided on an “as-is” basis without any further warranties of any kind. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, KINSA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES AND THE KINSA MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
a. No Consequential Damages: To the fullest extent permitted under applicable law, Kinsa shall not be liable for any incidental, consequential, indirect, or special damages, lost business or anticipated savings, lost profits, lost data, lost goodwill, or third party claims, whether foreseeable or not, arising out of or in connection with the Services or the Agreement even if Kinsa has been advised, knew, or should have known, of the possibility of such damages and regardless of the form of action, whether in contract or in tort, including negligence and strict liability.
b. Liability Limitation: To the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract or in tort, including negligence and strict liability, Kinsa's total liability, if any, for any and all claims arising out of or in connection with the Services or the Agreement shall not exceed the total fees (excluding taxes) paid by Client under the applicable SOW over the last twelve (12) months with respect to the affected portion of the Service or Deliverable.
c. Kinsa Indemnification: Kinsa agrees to defend, indemnify and hold the Client harmless against any loss, damage or costs (including reasonable attorneys' fees), and/or to settle, at Kinsa's option, a third-party claim or cause of action against the Client alleging that Client's permitted use of the Services infringe or misappropriate a U.S. intellectual property or proprietary right of such third party (collectively, an “IP Claim”) and to pay damages finally awarded against the Client and paid to an unaffiliated third party or to pay settlement amounts directly, and solely resulting from such IP Claim. In the event of an actual or threatened IP Claim, Kinsa may, at its sole option: (i) procure for Client the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate Client's rights to use the Services and refund any pre-paid unused fees as of the date of termination. Notwithstanding the foregoing, Kinsa will have no obligation under this section or otherwise with respect to any IP Claim to the extent such IP Claim is based upon (a) any unauthorized use of the Services or any breach of this Agreement by Client, (b) any combination of the Services with other non-Kinsa solutions, equipment, software, uses or data, to the extent such IP Claim would not have arisen absent such combination and to the extent such combination is not reasonably anticipated, (c) any modification of the Services by any person not approved in writing by Kinsa, (d) any activity after Kinsa has provided Client with a work around or modification that would have avoided such issue without adversely affecting the functionality of the Services or (e) continued use of the Services after notification from Kinsa to stop use based on an IP Claim. The provisions of this section set forth Kinsa's sole and exclusive obligations, and Client's sole and exclusive remedies, with respect to any IP Claims.
a. Entire Agreement: The Agreement constitutes all of the terms and conditions with respect to the subject matter of each SOW, merging, integrating, and superseding all prior and contemporaneous representations and understandings with respect thereto. No modification, amendment or waiver of any of the provisions of any Agreement shall be binding upon the parties unless made in writing and duly executed by authorized representatives of Client and Kinsa. The Agreement shall take precedence over Client's additional or different terms and conditions, including any general terms of purchase of Client, to which notice of objection is hereby given. No SOW is intended to benefit any third party unless expressly stated therein.
b. Order of Precedence: In the event of any conflicts or inconsistencies among the Agreement, the following order of precedence shall apply, but only with respect to the specific subject matter of each: (i) Supplemental Terms, (ii) SOW terms, (iii) General Terms.
c. Force Majeure: Except for the obligation to pay money for Services rendered or Deliverables provided, each party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including the failure of any data supplier of Kinsa to timely supply data.
d. Assignment: Except as set out below, Client shall not without the prior written consent of Kinsa assign, transfer, or otherwise delegate, in whole or in part, the benefit of, or Client's rights or obligations under the Agreement. Kinsa and Client each shall have the right to assign the Agreement (including by operation of law) to the surviving party of any merger, acquisition, or reorganization to which it is a party, or to the purchaser of all or substantially all of such assigning party's assets, provided, however, that no such assignment by Client shall be to a competitor of Kinsa, and provided further that any assignment by Client shall not entitle such permitted assignee to receive the pricing extended to Client hereunder or to use any Services or Deliverables for the benefit of the assignee's existing business (i.e., its business existing prior to such assignment). Such pricing and use shall require further written agreement between the permitted assignee and Kinsa.
e. Governing Law: Except as otherwise specified in an SOW, the Agreement and all matters arising out of or related thereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of law principles, and any dispute between Client and Kinsa arising out of or related to the Agreement will be heard by and be subject to the exclusive jurisdiction of the state and federal courts of San Francisco County, California.
f. Compliance with Applicable Laws: Neither Kinsa nor Client shall violate any law or regulation directly applicable, in the case of Kinsa, to its performance of the Services and, in the case of Client, to the receipt or use of the Services. Nothing contained in the foregoing shall be interpreted to shift Client's legal or regulatory compliance obligations, which are and shall remain the sole responsibility of Client.
g. Export Restrictions: Client hereby acknowledges that the Services, Deliverables, and Kinsa Materials may be subject to United States or European Union export control and sanctions laws. Client agrees that the Services, Deliverables and Kinsa Materials shall not, without all appropriate licenses and authorizations, be provided to or used in support of business with any person, entity or territory subject to United States or European Union sanctions, nor shall they be exported or re-exported to any person or destination prohibited by, or otherwise used in violation of, applicable export control or economic sanctions laws.
h. Execution: An SOW may be executed by the parties on the same or separate counterparts, and/or by .pdf or electronic signature. Any executed copy of an SOW made by reliable means (e.g., scanned image, photocopy, or facsimile) will be deemed to be an original, and all executed counterparts together will constitute one and the same instrument.
i. Notices: Client shall provide prompt written notice to Kinsa of any material breach by Client of any SOW. All notices or demands required in connection with any SOW shall be given in writing and shall be delivered to the respective addresses identified in the applicable SOW by an internationally recognized common carrier's overnight delivery service providing proof of delivery. For any notices sent to Kinsa, a required copy shall also be sent to the attention of the Kinsa Legal Department at its global corporate offices in the United States.
j. Waiver / Severability: The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or the right of any of the parties thereafter to enforce each and every provision in accordance with the terms of this Agreement. If any provision of the Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed, and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.
Last Updated: April 19, 2023