PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS WAIVERS, DISCLAIMERS AND LIMITATIONS SUCH AS A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, A BINDING ARBITRATION CLAUSE, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS, RULES AND REGULATIONS.
This document sets forth the Terms of Use and various other notices pertaining to services provided by Koya Medical, Inc. (“Koya”) in connection with the Koya system. The mobile application (the “App”), is available on the Apple App Store and Google Play Store. Please read the following terms of use for the App (collectively, the “Terms of Use”) as they set forth important terms that you should be aware of regarding the App and any services provided by Koya (the “Services”). Before using the App or the Services, registering any Koya products, creating an online account for the use of the App or the Services, you must review the Terms of Use and policy regarding privacy (the “Privacy Policy”). You agree that, when you check the “I consent to” button, you represent that you (i) are the person taking such action and will be the user of the Koya product, App and/or Services (unless you are under the age of 18, in which case the person represents that he/she is the parent or guardian of the user of the Koya product, the App and/or Services and makes such representations on behalf of said user); (ii) have received, reviewed, consent to, and agree to be bound by the Terms of Use and Privacy Policy; and (iii) agree that such action has the same force and effect as a physical signature.
TABLE OF CONTENTS
All use of the App and the Services shall be governed by the Terms of Use and the Privacy Policy. These Terms of Use apply exclusively to your access to and use of the App and associated Services and do not alter in any way the terms and conditions of any other agreement or requirements you may have with Koya for products, other services, or otherwise. If you do not agree with the Terms of Use or the Privacy Policy, you do not have permission to use the App or access any of the Services. The Koya product(s) used in conjunction with the App and/or the Services will not transmit data, including personal information, unless and until you create an account and the data generated by the Koya product is transmitted when connected to the App.
Koya provides a variety of lymphedema treatment products that operate independently or in conjunction with software, websites, and mobile apps including, without limitation, the App. You agree to use the App to control your Koya device, view information regarding your usage of the Koya device, and to consult with your designated medical professionals regarding your lymphedema issues (and for no other purposes).
Koya does not currently charge a fee in connection with the use of the App and/or Services but reserves the right to do so if it is necessary in Koya’s sole discretion. Notwithstanding the foregoing, you are and shall continue to be responsible for all software, hardware, internet connection, fees, expenses, costs, taxes, obligations and liabilities of any kind or nature required or incurred in connection with your use of the App and/or Services.
Your use of the App and/or the Services is subject to all additional terms, policies, rules, or guidelines that Koya may implement or require. All such additional terms, policies, rules, or guidelines are incorporated as if fully set forth in these Terms of Use. These Terms of Use, together with the Privacy Policy and any additional terms, policies, rules, or guidelines promulgated by Koya, constitute the entire agreement and understanding between you and Koya regarding your access and use of the App and/or the Services.
Please refer to the Privacy Policy for information on how Koya uses, processes and shares personal and non-personal information it may obtain about you when you use the App and/or the Services. The Privacy Policy can be accessed by clicking the following link: https://www.koyamedical.com/privacy-policy
Please read the Privacy Policy carefully, as its terms and conditions are incorporated as if fully set forth herein. You consent to the collection, use, and disclosure of information (if any) provided to Koya through the App, your Koya account, or otherwise.
NEITHER THE APP NOR THE SERVICES PROVIDE EMERGENCY SERVICES OR HAVE THE CAPABILITY OF CONTACTING MEDICAL PROFESSIONALS IN THE EVENT OF A MEDICAL EMERGENCY. IF A MEDICAL EMERGENCY EXISTS IN THE UNITED STATES, CALL 9-1-1 IMMEDIATELY.
THE CONTENT AVAILABLE THROUGH THE APP AND/OR SERVICES THAT IS COMMUNICATED TO YOU VIA THE APP, ANOTHER APPLICATION, TOOL, TEXT, EMAIL, ETC. IS FOR PERSONAL, NON-COMMERCIAL, INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AND SHOULD NOT BE USED TO BE A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF HEALTHCARE PROFESSIONALS. KOYA DOES NOT, IN ANY WAY, PROVIDE MEDICAL ADVICE, MEDICAL PRESCRIPTIONS, MEDICAL TREATMENT, OR MEDICAL DIAGNOSES OF ANY KIND OR NATURE. THE USE OF ANY CONTENT GENERATED BY OR OTHERWISE RELATED TO THE APP AND/OR THE SERVICES DOES NOT ESTABLISH A PHYSICIAN-PATIENT RELATIONSHIP. IT IS YOUR RESPONSIBILITY TO PRESENT YOUR MEDICAL DATA TO YOUR PHYSICIAN(S) FOR PROPER ANALYSIS, DIAGNOSIS, AND TREATMENT. YOU ACKNOWLEDGE AND AGREE THAT KOYA IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISION MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED ON THE DATA COLLECTED, STORED, TRANSMITTED, OR DISPLAYED BY THE APP AND/OR SERVICES, WHETHER SUCH DATA IS ACCURATE OR NOT. KOYA AND ITS AFFILIATES DO NOT WARRANT THAT THE APP, SERVICES, OR ANY PORTION THEREOF WILL BE CONTINUOUSLY AVAILABLE WITHOUT INTERRUPTION, SECURE, OR FREE FROM ERRORS, VIRUSES, OR OTHER DANGERS OR THREATS, AND SPECIFICALLY DISCLAIM ANY WARRANTY THAT ANY OF THE THESE ISSUES, IF PRESENT, WILL BE REMEDIED.
NEITHER KOYA NOR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS (IF ANY) MAKE ANY SPECIFIC REPRESENTATIONS OR WARRANTIES REGARDING THE APP OR SERVICES. BY USING THE APP AND/OR SERVICES, YOU ACCEPT THE APP AND/OR SERVICES “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. THIS DISCLAIMER INCLUDES, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, OR ANY WARRANTY AS TO WHETHER THE DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APP AND/OR THE SERVICES IS TRUE, COMPLETE OR ACCURATE. NO INFORMATION OBTAINED OR ACCESSIBLE BY YOU FROM KOYA OR ITS AFFILIATES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OR ACCESS TO THE APP AND/OR SERVICES, YOUR INTERACTION WITH ANY OTHER USER(S), AND ANY DATA OR INFORMATION MADE AVAILABLE TO YOU IN THE APP AND/OR SERVICES.
Using the App and/or the Services does not grant you any right, title, or interest in, under, or to any intellectual property rights owned or controlled by Koya or its affiliates (collectively, “Koya IP”), which includes, without limitation, the user interface and design of the App, information, data, source code, software, the Services, any intellectual property rights to the design, function, or use of Koya devices, or any other component of the Koya device, App, or Services whether registered or not. Neither these Terms of Use nor your use of the Koya device, App and/or Services grant(s) you the right to use any branding or logos used in the Koya device, App or the Services including, without limitation, the Koya name or logo. You agree not to remove, obscure, or alter any legal notices displayed in or along with the Koya device, App and/or Services. Any unauthorized reproduction, modification, distribution, or use of any Koya IP is strictly prohibited.
Subject to the foregoing, and subject to the other provisions of these Terms of Use, Koya grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App on devices that you own or have the right to use, for your use in a non-commercial, informational, and personal context consistent with these Terms of Use. This means that you may view the information provided by the App or the Services for the limited purpose of sharing such information with your designated medical professional, but you may not reproduce, copy, sell, transmit, publish, distribute, modify, display, assign, license, or otherwise exploit such information for any other purpose without Koya’s prior written consent, which may be withheld in its discretion. You acknowledge and agree that, by downloading the App, it is licensed, and not sold, to you. Any and all rights not granted in these Terms of Use are expressly reserved by Koya.
To the fullest extent permitted by law, the information generated by the App or the Koya device shall be owned, controlled, and used by Koya in its sole discretion. Such information includes, but is not limited to, the time of day the Koya product is used and how long each day the Koya product is used.
Koya may provide its products and content to the United States Government or an agency thereof (collectively, the “Government”) with “Restricted Rights.” Use, duplication, or disclosure by the Government is subject to the restrictions permitted by the Defense Federal Acquisition Regulation Supplement (“DFARS”) to the Federal Acquisition Regulation (“FAR”), FAR, or the Code of Federal Regulations (“CFR”) including, without limitation, DFARS 252.227-7013, FAR 52.227-14, and 48 CFR 52.227-19. Any rights not expressly granted by Koya to the Government are fully reserved.
Koya may require you to register and use a password or login link to access the App and/or the Services (or any portion thereof). You must maintain the confidentiality of any passwords and login links used to access the App and/or the Services. Koya shall not be liable for any loss or liability you incur as a result of someone else having access to or using your password or account (including your failure to establish and maintain a secure password). If you become aware of any unauthorized use of your password or account, you shall contact Koya immediately.
To the fullest extent permitted by Laws, Koya expressly reserves the right to refuse access to the App and/or the provision of any Services or to suspend your Koya account at any time and for any or no reason. You agree that you are only permitted to register the serial number on your Koya product(s) and that you are using such product(s) for your own therapy.
By accessing and using the App and/or Services, you represent, warrant, and covenant that (i) you are at least 18 years of age (or, if you are younger than 18 years of age, your legal guardian has reviewed and accepted these Terms of Use and Privacy Policy on your behalf), (ii) the information that you have provided to Koya is true, complete, and correct in all respects, (iii) your use of the App and/or Services will not be for any illegal purpose and will comply with all applicable laws, rules, regulations, ordinances, orders, and decrees in effect at the international, federal, state and local levels (collectively, the “Laws”), (iv) you will not act or refrain from acting in such a way that will or could be harmful to others or damage Koya’s reputation or goodwill, (v) you will not violate the rights or privileges of Koya or any third party, (vi) you will not interfere with Koya’s use, maintenance, or development of the App and/or Services, (vii) you will not interfere with any other users’ use of the App and/or Services, (viii) you will not breach any security measures established by Koya or any third party with respect to the App and/or the Services, (ix) you will not attempt to replicate, reverse engineer, or otherwise reproduce the App or the Services or the function thereof, or (x) you will not use any bot, spider, or other automatic or manual method to review, scrape, or compile information from the App or the Services. If, at any time, the information you have provided to Koya changes or becomes untrue, you agree to promptly update such information. You also agree to cease using the App and/or the Services to the extent such use violates or no longer complies with the Laws.
NEITHER KOYA, ITS OWNERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, ADVISORS, CONTRACTORS, SUCCESSORS, ASSIGNS, OR ANY OF THEIR RESPECTIVE AFFILIATES (COLLECTIVELY, THE “KOYA REPRESENTATIVES”), WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RELATING IN ANY WAY TO YOUR ACCESS OR USE OF THE APP AND/OR SERVICES REGARDLESS OF THE THEORY OF LIABILITY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM, POTENTIAL CLAIM, OR DEMAND IS BASED UPON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR WHETHER KOYA OR THE KOYA REPRESENTATIVES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE EXTENT KOYA AND/OR THE KOYA REPRESENTATIVES CANNOT FULLY DISCLAIM LIABILITY FOR THE FOREGOING DAMAGES BASED ON APPLICABLE LAWS, THEN YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE SOLE AND EXCLUSIVE, AND AGGREGATE LIABILITY OF KOYA AND THE KOYA REPRESENTATIVES (TO THE EXTENT APPLICABLE) SHALL BE THE TOTAL AMOUNT PAID BY YOU TO KOYA FOR THE SIX (6) MONTH PERIOD IN WHICH THE CLAIM AROSE OR $250, WHICHEVER IS HIGHER. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, YOU SHALL DEFEND, INDEMNIFY, AND HOLD KOYA AND THE KOYA REPRESENTATIVES HARMLESS FROM ANY LIABILITY, OBLIGATIONS, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, COSTS, AND EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM OR IS IN ANY WAY ATTRIBUTABLE TO, IN WHOLE OR IN PART, (I) YOUR ACCESS TO AND USE OF ANY KOYA DEVICE OR ANY PORTION OF THE APP, THE SERVICES, OR THE DATA GENERATED BY THE APP AND/OR THE SERVICES, (II) YOUR BREACH OF THESE TERMS OF USE INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY AND ANY OTHER APPLICABLE POLICIES OR PROCEDURES GOVERNING YOUR ACCESS TO AND/OR USE OF THE APP AND/OR SERVICES, (III) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE, REGULATION, ORDER OR ORDINANCE, (IV) YOUR VIOLATION OF ANY THIRD-PARTY’S RIGHTS OR PRIVILEGES, (V) ANY DISPUTE BETWEEN YOU AND ANY THIRD-PARTY, (VI) ANY ACT OR OMISSION COMMITTED BY YOU, (IV) THE INACCURACY OR INCOMPLETENESS OF ANY DATA THAT YOU PROVIDE TO KOYA, OR (V) YOUR INTERACTION, IF ANY, WITH ANY KOYA REPRESENTATIVES OR OTHER USERS OF THE APP AND/OR SERVICES.
Specific reference is made to the California Consumer Privacy Act of 2018 (the “CCPA”). California residents should carefully access and review the Privacy Policy and supplemental CCPA notice closely to understand their specific rights regarding their personal information and how to exercise such rights. When you check the “I consent to” button below, to the extent you are a California resident, you (i) represent and warrant that you have received, reviewed, consent to, and agree to be bound by the Privacy Policy including, without limitation, the supplemental CCPA notice; and (iii) agree that such action has the same force and effect as a physical signature.
Koya reserves the right to modify these Terms of Use at any time and for any or no reason and without notice of such modifications. Koya may expand the scope of the App and/or Services to, among other things, add features or make improvements. If such changes are made, these Terms of Use will govern any such changes until any such modifications take effect.
The App and/or Services may contain links to third-party websites or services. Such third-party websites or services are not controlled by Koya, and as a result, Koya is not responsible for your use or investigation of such third-party websites or services. You are expressly prohibited from linking your data to any other third-party website without the prior written consent of Koya, which may be withheld in its sole discretion.
You acknowledge that the App and/or Services provided by Koya may rely on third-party providers. Koya shall not be obligated to do anything or otherwise be responsible for anything outside of its control including, without limitation, difficulties or impossibilities resulting from, arising out of, or relating to weather conditions, acts of God, acts of war, terrorism, riots, civil disorder, insurrection, rebellion, quarantines, pandemics, endemics, tariffs, embargoes, law or regulation changes, labor strikes, network or internet outages, or unauthorized security breaches by third parties. You may not assign your rights or obligations under these Terms of Use without Koya’s prior written consent, which may be withheld in its sole discretion. Any unauthorized assignment or attempted assignment in violation of these Terms of Use shall be null and void.
Koya may assign these Terms of Use at any time for any or no reason without notice to you and without your consent. No waiver of any terms, conditions, or any breaches or defaults thereof, may be made without a writing signed by an authorized Koya representative. Koya’s waiver, if any, will not include any waiver of a subsequent breach or default by you. Use of section headers is for convenience only and does not impact the interpretation of these Terms of Use. If any portion of these Terms of Use are held to be unenforceable, the unenforceable part will be given effect to the maximum extent possible, and the remaining parts will remain in full force and effect. Sections 3-8 and 10 herein, along with the Privacy Policy and any supplements thereto, shall survive the expiration or termination of these Terms of Use.
To the fullest extent permitted by law, these Terms of Use shall be governed by the laws of the State of California without regard to its conflict of law principles. YOU AGREE TO SUBMIT ALL DISPUTES ARISING OUT OF THE TERMS, CONDITIONS, ENFORCEMENT OR INTERPRETATION OF THESE TERMS OF USE (INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY AND ANY OTHER DOCUMENTS, REQUIREMENTS OR TERMS INCORPORATED HEREIN) TO BINDING ARBITRATION IN ACCORDANCE WITH THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). ALL PROCEEDINGS SHALL BE BROUGHT IN SANTA CLARA COUNTY, CALIFORNIA BEFORE A SINGLE ARBITRATOR (ONE ARBITRATOR, NOT A PANEL). ALL DECISIONS RESPECTING THE ARBITRABILITY OF ANY DISPUTE SHALL BE DECIDED BY THE ARBITRATOR. IF ANY PARTY COMMENCES LITIGATION IN VIOLATION OF THIS SECTION, THAT PARTY SHALL REIMBURSE THE OTHER PARTIES TO THE LITIGATION FOR THEIR COSTS, EXPENSES, AND ATTORNEY’S FEES INCURRED IN SEEKING ABATEMENT OF SUCH LITIGATION AND ENFORCEMENT OF ARBITRATION. ALL MEDIATION AND ARBITRATION FEES AND EXPENSES ARE SUBJECT TO BEING AWARDED BY THE ARBITRATOR TO THE PREVAILING PARTY, TO THE SAME EXTENT THAT COURT COSTS MAY BE AWARDED UNDER APPLICABLE LAW. THE ARBITRATION AWARD OR DECISION IS FINAL AND MAY BE CONFIRMED, ENTERED AND ENFORCED AS A JUDGMENT IN A COURT HAVING JURISDICTION, SUBJECT TO APPEAL ONLY IN THE EVENT OF THE ARBITRATOR'S MANIFEST DISREGARD OF THE LAW, NO EVIDENCE TO SUPPORT THE AWARD, OR SUCH OTHER GROUNDS FOR APPEAL OF ARBITRATION AWARDS THAT EXIST BY STATUTE, COMMON LAW, REGULATION, OR THE APPLICABLE RULES OF THE ADMINISTRATOR. IN ANY ARBITRATION PROCEEDING, ALL PROVISIONS AND LIMITATIONS OF THIS AGREEMENT SHALL BE GIVEN FULL FORCE AND EFFECT. IN ADDITION, APPLICABLE FEDERAL AND STATE LAW SHALL APPLY; ALL APPLICABLE CLAIMS, CAUSES OF ACTION, REMEDIES AND DEFENSES AS AVAILABLE IN COURT SHALL APPLY AS DEFINED OR LIMITED IN THIS AGREEMENT; THE PARTIES SHALL BE ENTITLED TO CONDUCT REASONABLE AND NECESSARY DISCOVERY AS AGREED TO BY THE PARTIES OR AS ALLOWED BY THE AAA; THE ARBITRATOR SHALL RENDER A WRITTEN AWARD AND, IF REQUESTED BY ANY PARTY, A REASONED AWARD; AND THE ARBITRATOR SHALL HAVE THE RIGHT TO APPORTION THE COST OF ANY EXPENSES IN AN EQUITABLE MANNER IN THE ARBITRATION AWARD. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER A PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER AND SELLER.
By using the App and/or Services, you consent to receiving notices from Koya in electronic format. Any such notices, agreements, disclosures, or other communications sent to you in electronic format will satisfy the legal communication requirements, if any, including that such communications be in writing. The notices sent to you shall be deemed received and effective when sent to the email address provided by you. You agree to keep your email address updated in the App and in your Koya account. Koya is not responsible for the timeliness or final delivery of any electronic messages that are not received for reasons outside of its control.
The following applies to any application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
Any notice, demand or communication required or permitted under these Terms of Use shall be in writing and delivered personally or by reputable overnight delivery service or other courier (unless delivered electronically via electronic mail with delivery and read receipt requested), and shall be deemed to have been duly given as of the date and time reflected on the delivery receipt, addressed as follows:
Koya Medical, Inc.
2461 Peralta St.
Oakland, CA 94607
For general inquiries, you may contact Koya by calling the following number: (415) 209 5035
