“YOU” AND “YOUR” REFER TO THE PERSON ACCESSING OR USING THE SERVICES, OR IF YOU CREATE AN ACCOUNT ON BEHALF OF AN EMPLOYER, COMPANY, ORGANIZATION, OR OTHER ENTITY, THEN (I) ALL REFERENCES TO “YOU” HEREIN INCLUDES YOU AND THAT ENTITY, (II) YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, AND (III) YOU AGREE TO THIS AGREEMENT ON THE ENTITY’S BEHALF.
In order to use the Membership, you must subscribe, pay any applicable subscription fees (“Membership Fees”) when due, and create an account (“Account”). You agree to provide true, accurate and complete information and keep your Account information current and updated. You shall not select or use as a username a name of another person with the intent to impersonate that person or use as a username a name subject to any rights of a person other than you without appropriate authorization. You are solely responsible for any and all activities that occur under your Account or password, and for keeping your Account password confidential and secure. You may never use another person’s account or registration information for the Services without permission. You agree to notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account or password. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. KEYTO will not be liable for any loss or damage arising from your failure to comply with this Section.
4. USE OF THE SERVICES
KEYTO software, text, graphics, images, video, audio, data and other material are made available to you through the Services (collectively referred to as the “Content”). Subject to this Agreement and your Membership, we grant to you a worldwide, non-exclusive, non-sublicensable and non-transferable limited license to (i) access and use (i.e., to download and display locally) the Content and the software and applications made available through the Services and (ii) use the KEYTO software embedded within the KEYTO Breath Sensor (the “KEYTO Breath Sensor”), in each case solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Services, or our partners, sponsors, or affiliates. The Content is protected by intellectual property rights, including copyright under both United States and other laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Other than your rights in any User Content (as defined below), you have no rights in or to the Content, and you may not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. If you violate any part of this Agreement, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.
Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on this Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.
The Services include access to links to, and content and data from, third-party websites (“External Services”). These links, content, and data are provided solely as a convenience to you, are not an endorsement by us of the content on such External Services and may be subject to separate legal terms and conditions between you and third parties. The content of such External Services is developed and provided by others. In addition, the Services permit access to content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
The Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by KEYTO. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications; (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof; (iii) use of web scraping, web harvesting, or web data extraction methods from KEYTO even if the Account owner gives permission; and (iv) any use of the Services which is unlawful or in violation of this Agreement.
All of the material included on the Website, including but not limited to trademarks, text, graphics, logos and service marks (collectively, the “Content”), is the property of Keyto and other parties. U.S. and international copyright law protects all Content available on the Website. Your use of the Service and the Content does not transfer to you any ownership or other rights in the Service or the Content. You may download Content displayed on the Website for your personal, noncommercial use only, provided you also retain all copyright and other proprietary notices contained on the Content. You may not modify, copy, distribute, transmit, display, publish, sell, license, or create derivative works using any of the Content for commercial or public purposes. By agreeing to these terms and conditions, you agree to allow Keyto to use aggregated, anonymized data for use in research and development, analytics, and publication in journals, blog articles, and other media. You also agree to allow KEYTO employees, goal specialists, dieticians, personal trainers, and other coaches to access your data as part of the KEYTO coaching service.
Unless otherwise prohibited by law, and without prejudice to KEYTO’s other rights or remedies, KEYTO shall have the right to immediately terminate (i) your Membership if you breach any of the terms of this Agreement and (ii) any of the Services, in our sole discretion at any time; provided that if you are not in breach of this Agreement, we will provide you with a pro rata refund of any Membership Fee paid by you in advance reflecting the period where you did not benefit from the terminated Services as a result of such termination.
You must maintain an active Membership to continue using the Services. This Agreement and your Membership may be renewed for additional Membership periods pursuant to the Membership purchased. If you do not maintain an active Membership and pay all Membership Fees when due, this Agreement shall terminate.
If you have obtained a free Membership, KEYTO reserves the right at any time to modify or discontinue, temporarily or permanently, such free Membership, your Account and your access to the Services with or without notice. Unless modified or discontinued by KEYTO in its sole discretion, your free Membership shall continue until the end of the applicable free Membership period, or until you cancel or upgrade to a paid Membership.
Unless otherwise stated, all Membership Fees are non-refundable, even if you stop using the Services. Your Membership will begin once you connect your KEYTO Breath Sensor, or thirty (30) days after shipment of your KEYTO Breath Sensor, whichever is soonest. In the case of a monthly Membership, you authorize KEYTO to charge your credit card after each one (1) month pre-paid period ends and, subject to our Warranty and Return Policy below, you may only cancel your monthly Membership after three (3) months. In the case of six (6), twelve (12) and eighteen (18) month Memberships, the initial non-refundable (subject to the terms found in our Warranty and Return Policy below) Membership Fee covers the first six (6), twelve (12) or eighteen (18) months of your Membership (“Initial Membership Fee”), respectively. The Initial Membership Fee also covers the cost of your KEYTO Breath Sensor, and you will retain ownership of your KEYTO Breath Sensor after you stop or cancel your Membership and after payment of the Initial Membership Fee.
If any Membership Fees that are due are outstanding for a period of three (3) days or more, your Account will go into an inactive state. In this inactive state, you will be unable to upload data from your KEYTO Breath Sensor. You will, however, still be able to access any historical data, that is, data which is uploaded prior to your Account entering into an inactive state. Upon appropriate payment, your Account will be reactivated, and you will be able to utilize the full functionality of the Membership and your KEYTO Breath Sensor.
Upon cancellation or termination, all licenses granted to you hereunder shall terminate automatically, your right to use the Services shall cease and your User Content, as defined below, will no longer be available to you through the Services.
You shall receive the support and maintenance, if any, as set forth in KEYTO’s FAQs or as provided with your Subscription.
7. USER CONTENT
The Services may include functionality to permit the submission of your Content, whether manually at the direction of users of the Services or automatically in accordance with your Account settings (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You warrant and represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. User Content includes, without limitation, any user profile information you submit and make publicly available, any information collected by the KEYTO Breath Sensor, including, without limitation, statistics and measurements, wellness information and recovery scores generated through the use of the Services, and any information submitted by you to “tag” any activities recorded through the Services. You understand that KEYTO does not guarantee any confidentiality with respect to User Content that you submit and make available to others.
You shall be solely responsible for User Content you submit or allow to be collected and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express specific, informed and unambiguous consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to edit, modify, truncate, aggregate, use, reproduce, distribute, prepare derivative works of, modify, display, perform, publish and otherwise commercially exploit all or any portion of the User Content in connection with our provision of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels and sharing the User Content with social media platforms (i.e., posting User Content to Twitter or Facebook if enabled in your Account’s sharing settings) with our business partners and licensees for informational and analytical purposes.
In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities and infringement of intellectual property rights in connection with the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) 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 the service provider to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) is: General Counsel, KEYTO, Inc., 401 Park Drive, Suite 10, Boston, MA 02215. Only notices pursuant to this Section 7 and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to the address in Section 15.
8. NO MEDICAL ADVICE
KEYTO provides the Services for you to track, manage, and share your wellness-related information. THE SERVICES AND ANY RESULTS OR CONTENT DISPLAYED VIA THE SERVICES, WHETHER PROVIDED BY KEYTO OR THIRD PARTIES, DO NOT PROVIDE MEDICAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR (I) ADVICE FROM YOUR DOCTOR OR OTHER MEDICAL PROFESSIONALS, OR ANY DIAGNOSIS OR TREATMENT OR (II) a visit, call or consultation with your doctor or other medical professionals. THE SERVICES DO NOT AND ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY. USE OF THE SERVICES, OR COMMUNICATION WITH US VIA THE INTERNET, E-MAIL OR OTHER MEANS, DOES NOT CREATE ANY DOCTOR-PATIENT RELATIONSHIP. If you have any health related questions, please call or see your doctor or other healthcare provider. You should never disregard medical advice or delay in seeking medical advice because of any content presented on the services, and you should not use the services or any content on the services for diagnosing or treating a health problem. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise OR ATHLETIC program. You agree that your athletic activities carry certain inherent and significant risks of bodily injury, death or property damage, and that you voluntarily assume all known and unknown risks associated with these activities.
9. PAYMENT OF FEES
- a. You agree to pay (i) the Membership Fees as described in this Agreement and during the purchase and payment process; and (ii) the non-refundable Initial Membership Fee (as described above). Any payment terms presented to you in the process of obtaining your Membership are deemed part of this Agreement and are incorporated herein by reference.
- Billing. We may collect payments from you directly or we may use a third-party payment processor ( “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for your Membership. The processing of payments by a Payment Processor will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to this Agreement. We are not responsible for any errors by a Payment Processor. By choosing to purchase a Membership, you agree to pay us, either directly or through a Payment Processor, all Membership Fees and other charges at the prices then in effect and in accordance with the applicable payment terms and you authorize us, through a Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that we or a Payment Processor make even if we or a Payment Processor have already requested or received payment.
- Payment Method.The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Recurring Billing.The Membership payment terms may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Membership Fees have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, ANNUALLY, OR EVERY EIGHTEEN MONTHS, DEPENDING ON YOUR SUBSCRIPTION) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS AT members.getkeyto.com
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS AT members.getkeyto.com. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY SUBSCRIPTION FEES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION AS SET FORTH ABOVE.
- Auto-Renewal. The Membership will be automatically extended for successive monthly renewal periods in the event you have purchased a monthly Membership or successive twelve (12) month periods in the event you have purchased a twelve (12) or eighteen (18) month Membership at the then-current non-promotional rate. In the case of a twelve (12) or eighteen (18) month Membership we will notify you by email at least thirty (30) days prior to such automatic extension taking effect. To change or terminate your Membership, go to Account settings at https://members.getkeyto.com. If you terminate your Membership, you may continue to use your Membership until the end of your then-current term and your Membership will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the Membership Fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring basis, you must cancel or terminate your Membership before the end of the then-current term. Your Membership cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, KEYTO will not refund any amounts that you have already paid.
- Reaffirmation of Authorization. Your non-termination or continued use of your Subscription reaffirms that we are authorized to charge your Payment Method for that Subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance or as otherwise described when you initially selected to purchase the Subscription.
You agree to defend, indemnify, and hold us and our subsidiaries, affiliates, officers, agents, suppliers, employees, partners and licensors harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your User Content, (ii) your breach of this Agreement, (iii) your uploading of, access to, connection to, or use or misuse of the Content or the Services, or (iv) your violation of law. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. DISCLAIMER OF WARRANTY
EXCEPT AS STATED IN SECTION 16, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND. WE HEREBY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT) OR SERVICES, INCLUDING BUT NOT LIMITED TO ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
NEITHER WE NOR OUR AFFILIATES OR PARTNERS SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. FURTHER, WE MAKE NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ERROR FREE OR THAT THE SERVICES OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. YOU AGREE THAT YOUR USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE KEYTO Breath Sensor, THE BATTERY PACK, THE SERVICES AND/OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, IN EXCESS OF ONE HUNDRED DOLLARS, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
IF YOU ARE A USER FROM NEW JERSEY, SECTION 11 (DISCLAIMER OF WARRANTY) AND SECTION 12 LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PROVISION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PROVISION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PROVISIONS OF THE APPLICABLE SECTIONS.
13. CHANGES TO SERVICES
The Services may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We will try to give you notice when we make a material change to the Services, but this is not always practical. Similarly, we reserve the right to remove any Content or User Content from the Services at any time, for any reason (including, but not limited to if someone alleges you contributed Content or User Content in violation of this Agreement), in our sole discretion, and without notice.
14.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. This Agreement will inure to the benefit of our successors and permitted assigns.
14.2 Governing Law; Venue. This Agreement are governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of law provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Boston in the Commonwealth of Massachusetts.
14.3 Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
14.4 Non-Waiver. Failure by us to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
14.6 Headings. The section headings are provided merely for convenience and shall not be given any legal import.
14.7 Survival. All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Indemnity, Disclaimer of Warranty and Limitation of Liability, and General.
14.8 Third Party Distribution Channels. KEYTO offers software applications that may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain such software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
- KEYTO and you acknowledge that this Agreement is concluded between KEYTO and you only, and not with Apple Inc. (“Apple”), and that as between KEYTO and Apple, KEYTO, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-exclusive, revocable, non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be KEYTO’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- KEYTO and you acknowledge that KEYTO, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between KEYTO and Apple, KEYTO, not Apple, 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.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to KEYTO at the e-mail address, phone number or mailing address set forth in Section 15 of this Agreement.
KEYTO and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
If you have any questions regarding the Services, please contact KEYTO via e-mail at [email protected]
16. WARRANTY, WEIGHT LOSS GUARANTEE, AND RETURN POLICY
Our Thirty (30) Day Return Policy
If you are unhappy or unsatisfied with your KEYTO Breath Sensor or the Services you may cancel your Membership and return your KEYTO Breath Sensor (at your own cost) for any reason within thirty (30) days of receipt of your KEYTO Breath Sensor for a full refund of the Initial Membership Fee (which will be paid via your original payment method), less return shipping costs.
In order to receive your refund you must request a return within thirty (30) days of receipt of the KEYTO Breath Sensor.
Below are instructions on how to return your KEYTO Breath Sensor and receive your refund.
WEIGHT LOSS GUARANTEE
If you do not lose at least 5% of your starting body weight within 24 weeks, you may be eligible for a refund of your KEYTO membership fees.
To be eligible for the Weight Loss Guarantee, you must:
– Have an active Membership with no outstanding balance or any unpaid fees;
– Be the original owner of the KEYTO Breath Sensor, meaning that the KEYTO Breath Sensor being replaced was the one originally paired with the Account associated with that KEYTO Breath Sensor;
– Input your starting weight into the KEYTO app within 2 weeks of starting your membership;
– Fulfill the completion of the KEYTO program within 24 weeks, which includes completion of all the KEYTO course lessons, blowing into the device at least 3x per week, weighing yourself and inputting into the KEYTO app at least 1x per week, and tracking at least 5 foods per week on the KEYTO app.
To request a refund, you must contact support at [email protected], at which point we will confirm the above listed criteria before processing your refund.
To request a return, you must contact Support at [email protected], at which point a return shipping label will be provided to you. Once you have requested your return, you are eligible for a refund of the Initial Membership Fee, less return shipping costs, as long as the KEYTO Breath Sensor is received within thirty (30) days from the date you requested the return.
To cancel your Membership within the thirty (30) days of receipt of the KEYTO Breath Sensor in order to receive your refund, you must return the KEYTO Breath Sensor in the manner described above. If you do not return the KEYTO Breath Sensor within that 30-day period, the refund will not be applied.
Once the 30-day period has passed, you may still return the KEYTO Breath Sensor, but you will not receive a refund for all or any portion of your Initial Membership Fee. While you may still cancel your Membership at any time, the cancellation of the Membership after the 30-day period has passed will not go into effect until the end of the initial subscription period. You may discontinue your use of the Membership and Services at any time.
Once a return is requested, KEYTO will cancel the Account associated with the return. For the sake of clarity, you will not be able to use the Account associated with the KEYTO Breath Sensor that was returned.
Once a KEYTO Breath Sensor is returned, we reserve the right to refurbish the KEYTO Breath Sensor for sale or for the KEYTO Breath Sensor to be sold as a replacement KEYTO Breath Sensor.
LIMITED WARRANTY: KEYTO Breath Sensor
KEYTO warrants that your KEYTO Breath Sensor is free from defects in materials or workmanship for a period of three (3) months from the date of your first use of the KEYTO Breath Sensor, as described above (such period, the “Warranty Period” and such warranty, the “Limited Warranty”). If your KEYTO Breath Sensor is defective during the Warranty Period, KEYTO will replace your KEYTO Breath Sensor, subject to the conditions below, at no additional charge. KEYTO is not responsible to repair or replace your KEYTO Breath Sensor if you violate this Limited Warranty. This Limited Warranty is non-transferable. Any Limited Warranty replacement KEYTO Breath Sensor shall be warranted under the original Warranty Period for the remainder of the Warranty Period, for thirty (30) days after you receive your replacement KEYTO Breath Sensor, or for any period as required by applicable law, whichever is longer.
To be eligible for the Limited Warranty, you must:
– Have an active Membership with no outstanding balance or any unpaid fees;
– Have a valid Payment Method on file should a restocking fee of $120 (“Restocking Fee”) be charged (as KEYTO is currently unable to process Payment Methods over the telephone); and
– Be the original owner of the KEYTO Breath Sensor, meaning that the KEYTO Breath Sensor being replaced was the one originally paired with the Account associated with that KEYTO Breath Sensor.
This Limited Warranty does not cover:
– Lost KEYTO Breath Sensor(s)
– Damage or failure through misuse or malfunction, normal wear and tear, improper or negligent use, improper or abnormal use, or any use contrary to instructions provided by KEYTO
– Damage or failure due to accident, acts of God, unauthorized commercial use, abuse, neglect, theft, unusual atmospheric conditions
– Cosmetic damage
– Any unauthorized modification to the product
– Attempted repair by unauthorized persons or with any parts not originally intended for or compatible with the KEYTO Breath Sensor
– Any alteration of the factory model name and/or serial number
This Limited Warranty gives the purchaser specific legal rights, you may also have other rights which vary from state to state that may result in the change of this Limited Warranty.
WARRANTY REPLACEMENT PROCEDURE
To request a warranty replacement, you must contact KEYTO Support at [email protected], at which point KEYTO shall send you a replacement KEYTO Breath Sensor as well as a return shipping label for the defective KEYTO Breath Sensor.
If you do not return the defective KEYTO Breath Sensor within thirty (30) days of receiving the return shipping label, KEYTO shall have the right to charge you the Restocking Fee for the unreturned KEYTO Breath Sensor. KEYTO reserves the right to charge you the Restocking Fee if you do not return the KEYTO Breath Sensor as described above, you cancel your Membership or remove your Payment Method.
You may request to replace your KEYTO Breath Sensor that has fallen outside of the Limited Warranty (“Non-Warranty Replacement”) for the Restocking Fee.
To be eligible for the Non-Warranty Replacement, you must:
– Have an active Membership with no outstanding balance or any unpaid fees; and
– Have a valid Payment Method on file to charge the Restocking Fee (as KEYTO is currently unable to process Payment Methods over the telephone).
To request a Non-Warranty Replacement, you can do so by logging into your Account page and going to the Lost Breath Sensor page in your Account’s Membership section. You will be prompted to enter your shipping address and information. The Restocking Fee will be charged to your Payment Method on file; should you not have a valid Payment Method on file, you will be prompted to enter one. Once the order is processed and your Account has been charged the Restocking Fee, your replacement KEYTO Breath Sensor will be shipped to you. If applicable, our Support team may be able to issue you a credit for a portion of the time you will be unable to utilize the Services.
17. UPGRADE POLICY
Payment of a one-time-fee to upgrade or replace your KEYTO Breath Sensor will not change the terms of your Membership to the Services.
If an upgraded or replacement KEYTO Breath Sensor is provided to you as part of a Membership renewal offer then the new Membership period will begin immediately upon purchase and remaining days in your current Membership, if any, will be appended to your account.
18. NOTICE FOR CALIFORNIA MEMBERS
Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.