These Terms and Conditions (the “Agreement”) are a legal agreement by and between Kinsa Inc., (“Kinsa”) having a business address at 535 Mission, Floor 18, San Francisco, CA 94105, and the entity purchasing the goods and services in the applicable ordering document (“Organization”). This Agreement governs the purchase and use of all goods and services purchased via the ordering document referencing this Agreement (“Order”).
Kinsa Product Scope
This Agreement between Kinsa and Organization is made pursuant to and incorporates by reference the terms and conditions of the Order and the Kinsa General Terms & Conditions below. This Agreement shall constitute a binding agreement between the parties.
The Kinsa for Schools Program (“Program”) is a real-time illness response system. This system combines distribution of Kinsa smart thermometers (“Thermometers”) with a distributed software solution to enable early illness outbreak detection and early response measures. The system is designed to help organizations maintain a healthy environment by improving the community’s knowledge of, and response to, spreading illness.
1. Kinsa for Schools Program
Through the Program under this Agreement, as set forth in the applicable Order, Kinsa will provide Organization with:
- Thermometer for each supported Organization participant (“End User”)
A bluetooth-enabled smart thermometer. The Thermometer seamlessly connects to the free Kinsa mobile app (“App”), providing End Users with personalized guidance based on age, fever and symptoms.
- End User self-monitoring mobile app customization
Custom Kinsa App functionality provides End Users with the ability to evaluate illness status on a daily basis. End User custom App (“Custom App”) features includes a self-monitoring feature which reminds End Users to check their temperature and respond to a series of symptom triage questions before leaving their home.
- Personal Information Sharing Principles
As part of one of Kinsa’s community health programs, End Users may receive Thermometers via their employer, health provider, or educational institution. Kinsa sometimes shares personal or health information with these entities, solely when all of the following conditions are met.
- End User has given Kinsa explicit permission to share data with this organization
and has been made aware of exactly which data will be shared and how it will be
- End User can opt out of sharing data with this organization at any time.
- Organization has a legitimate use case for collecting the data, which is helping the user or their community get or stay healthy through the monitoring of illness symptoms, following up symptomatic individuals to assist in ensuring access to available assistance, and limiting contact between symptomatic individuals and the community. Organization limits the use of this data to the stated use case.
- Organization collects the minimum amount of data needed to accomplish the stated use case.
- Organization’s use of the data is limited to the minimum amount of processing of such data needed to accomplish the stated use case.
- Organization commits to providing users with a true opt-in for sharing data, and will not take any retaliatory action against those who opt out of sharing data. For clarity, Organization cannot force End Users to consent to share data of any manner.
- Organization complies with any and all opt-out request by End Users regarding the processing of personal information, whether such opt-out is provided to Kinsa or Organization.
Each party shall comply with the above commitments.
- Program Portal
Upon expiration or termination of this Agreement, Kinsa will immediately stop providing Organization access to the Portal.
2. Program Fees
The Program is comprised of two cost components:
- Thermometer cost (one-time fee); and
- Annual Per-User-Per-Month (PUPM) subscription or Per-Participant-Per-Year (PPPY) as defined in the Order.
Organization commits to support at least the minimum number of End Users set forth in the Order. For clarity, an End User is any participant for which Organization supports under the Program (which includes (a) purchase of a Thermometer, and (b) access to the Kinsa Custom App, whether or not such End User actually uses such products or services. Organization shall initially purchase 1 Thermometer for each End User. Kinsa will provide access to the Custom App for the amount of End Users supported by the Organization. Organization may (a) purchase additional Thermometers and (b) add additional End Users to the program at any time. The cost for such additional Thermometers will be invoiced as incurred. If additional software licenses are needed to support new End Users, the PUPM (or PPPY) fee for each newly supported End User shall be paid upfront in full for the remainder of the then current annual term. Upon expiration or termination of this Agreement, Kinsa may immediately stop providing all Custom App functions for the End Users. Notwithstanding the foregoing, upon any expiration or termination of this Agreement, the End User will be permitted to continue its use of the Thermometer and Kinsa App (absent Organization specific functionally) in accordance with the license agreement between the End User and Kinsa (“EULA” available at: https://www.kinsahealth.co/terms-of-service/).
3. Use of FDA-cleared thermometers for this program
Kinsa will ensure that all Thermometers distributed as part of the Program will have U.S. FDA clearance.
4. Warranties, Disclaimers, and Restrictions
Kinsa warrants that each Thermometer distributed under this Agreement shall be free from defects in materials and workmanship under normal use (“Warranty”) for a period of one (1) year from the date of receipt by Organization (the “Warranty Period”). Kinsa is not responsible for damage arising from failure to follow instructions relating to the Thermometer’s use.
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, or (2) replace the Thermometer with a new or refurbished Thermometer. 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 makes no representations or warranties, implied or otherwise, to the End User under this Agreement. The EULA governs the relationship between Kinsa and the End User.
Organization is not permitted to sell Thermometers. Organization is not permitted to distribute Thermometers, except to its own participants in accordance with this Agreement.
5. Use of information from thermometers distributed under this Agreement
The term of each Order shall be set forth therein. Upon expiration, the term of each Order shall automatically renew on an annual basis for consecutive one year renewal terms unless either party provides the other party with notice of non-renewal at least 30 days prior to the expiration of the then current annual term.
KINSA GENERAL TERMS & CONDITIONS
1. SERVICES: Kinsa shall provide to Organization data, documentation, software, analysis, hardware, applications, and/or consultancy services (collectively, the “Services”) described in each Order. As used herein, “Agreement” shall mean this Agreement and any relevant Order, and any schedules, riders, addenda, or supplemental terms attached thereto or referenced therein (collectively, “Supplemental Terms”). Organization shall provide all relevant information, instructions, and/or access to Organization’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. As Kinsa is constantly improving its products and services, Kinsa may modify the Services from time to time in its sole discretion.
2. LICENSE: Kinsa grants to Organization 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 Order. “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. Organization grants Kinsa a limited, non-exclusive, royalty-free, non-transferable license to use Organization’s name and logo to publicly identify Organization as a customer of Kinsa in Kinsa’s marketing materials and on Kinsa’s website.
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, Organization 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 Organization, or (iii) accessing or deriving the source code for any licensed software.
4. PROPRIETARY RIGHTS: Organization 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 Organization 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 Organization hereunder. Notwithstanding anything to the contrary in this Agreement, Organization 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. Organization 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 Organization (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. Organization 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: Organization agrees to pay such fees as may be specified in an Order. Unless otherwise specified in the Order, Organization shall pay the amount of each invoice from Kinsa within thirty (30) days from the date of the invoice. If Organization fails to pay any amount when due, Organization shall pay, in addition to the invoice amount, interest at a rate equal to the lesser of 1% per month or, or the maximum amount permitted under applicable law, beginning on such date the invoice is due until such amounts are paid. Organization 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.
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 this Agreement. Organization 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 advise permitted recipients of Confidential Information of the confidential nature of such information. Notwithstanding the foregoing, Kinsa may add Organization’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. Kinsa agrees that it will collect, store, use, disclose, and process PII in connection with its performance of Services only in accordance with the Agreement and/or Organization’s written instructions, or as permitted or required by law. Organization agrees that any PII relating to Organization’s participants, consultants and agents provided to Kinsa in connection with the performance of the Services may be used and processed by Kinsa in connection with the administration and provision of the Services, and to identify and inform Organization (including Organization’s participants, consultants and agents) of additional Kinsa services which may be of interest to them.
a. Each Order shall become effective as of the date of any such Order and shall continue until the expiry or earlier termination thereof. Each Order shall be independent of any other Order, and the expiration or termination of one Order shall not affect any other Order.
b. Except as may be expressly provided in an Order, either party may terminate an Order only as follows: (i) immediately where any license restrictions, intellectual property rights, 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 this Agreement (except in the case of force majeure) by the other party that has not been cured within such thirty (30) day period. Any Services and Organization’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 Order, Organization 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 Order.
e. If Kinsa discontinues production or support of any Services with respect to all of its customers, Kinsa shall use commercially reasonable efforts to give Organization advance written notice of any such discontinuance. If Kinsa discontinues any Services for which Organization has prepaid, Organization shall receive a pro-rata refund of any prepaid fees for the terminated Service not supplied to Organization.
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”). Organization shall assume sole responsibility for any use of the Services that is inconsistent with such Published Specifications. The entire liability of Kinsa, and Organization’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 Organization to Kinsa in writing within 60 days of delivery of the affected Services.
b. Disclaimer: Except for the express warranties set forth in the Agreement, 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.
10. LIMITATION OF LIABILITY:
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 Organization under the applicable Agreement over the last twelve (12) months with respect to the affected portion of the Service or Deliverable.
a. Entire Agreement: The Agreement constitute all of the terms and conditions with respect to the subject matter of each Agreement, 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 Organization and Kinsa. The Agreement shall take precedence over Organization’s additional or different terms and conditions, including any general terms of purchase of Organization, to which notice of objection is hereby given. No Agreement 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) Agreement 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, Organization shall not without the prior written consent of Kinsa assign, transfer, or otherwise delegate, in whole or in part, the benefit of, or Organization’s rights or obligations under the Agreement. Kinsa and Organization 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 Organization shall be to a competitor of Kinsa, and provided further that any assignment by Organization shall not entitle such permitted assignee to receive the pricing extended to Organization 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 Agreement, 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 Organization 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 Organization shall violate any law or regulation directly applicable, in the case of Kinsa, to its performance of the Services and, in the case of Organization, to the receipt or use of the Services. Nothing contained in the foregoing shall be interpreted to shift Organization’s legal or regulatory compliance obligations, which are and shall remain the sole responsibility of Organization.
g. Export Restrictions: Organization hereby acknowledges that the Services, Deliverables, and Kinsa Materials may be subject to United States or European Union export control and sanctions laws. Organization 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 Agreement may be executed by the parties on the same or separate counterparts, and/or by .pdf or electronic signature. Any executed copy of an Agreement 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: Organization shall provide prompt written notice to Kinsa of any material breach by Organization of any Agreement. All notices or demands required in connection with any Agreement shall be given in writing and shall be delivered to the respective addresses identified in the applicable Agreement 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.