Important: Do not use the KidneyDiet software application accompanying this Agreement (the “Application”) until you have carefully read the following Agreement. Downloading, installing and/or using the Application (or authorizing any other person to do so) indicates your acceptance of the terms and conditions contained in this Agreement. If you do not agree with the terms and conditions of this Agreement, your sole and exclusive remedy is the discontinuation of your use of the Application.
This Mobile Application End User License Agreement (“Agreement“) is a binding agreement between you (“End User” or “you“) and Kismetly, Inc. (“Licensor“). This Agreement governs your use of the KidneyDiet mobile application, regardless of platform, (including all related documentation, the “Application“). The Application is licensed, not sold, to you.
BY DOWNLOADING, INSTALLING, and USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION.
1. Licensor’s Intellectual Property Rights. The Application and its content, including any images, icons, graphics, and text incorporated into the Application, are the property of Licensor (except where otherwise noted) or its third-party licensors, and are protected by copyright law. Further, the trademarks, logos, signs, and symbols are the property of Kismetly, Inc.
2. License Grant. Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, and nontransferable license to:
3. License Restrictions. You shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
4. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
7. Geographic Restrictions. The Content and Services are based in the state of Colorado in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
8. Updates. Licensor may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement. Updates may cause any information you have previously inputted through the App to be deleted or no longer accessible to you.
9. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials“). You acknowledge and agree that LICENSOR IS NOT RESPONSIBLE FOR THIRD-PARTY MATERIALS, INCLUDING THEIR ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, COPYRIGHT COMPLIANCE, LEGALITY, QUALITY OR ANY OTHER ASPECT THEREOF. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Examples of Third-Party Materials may include, but are not limited to, and Licensor has the right to add or remove Third-Party Materials with or without notice to you: U.S. Department of Agriculture, Agricultural Research Service. 2020; USDA Food and Nutrient Database for Dietary Studies 2017-2018; Food Surveys Research Group Home Page, http://www.ars.usda.gov/nea/bhnrc/fsrg; U.S. Department of Agriculture (USDA), Agricultural Research Service; FoodData Central: USDA Global Branded Food Products Database. Version Current: July 2018. Internet: fdc.nal.usda.gov; and the University of Minnesota Nutrition Coordinating Center Food and Nutrient Database is one of the sources of nutrient data for the app.
Licensor or the providers of the Third-Party Materials make no representations or warranties as to the accuracy, reliability, completeness or timeliness of any data available through the Application, and no commitment to update such data is made
10. App Provider.If you download the Application from a third-party app store (the “App Provider”), you acknowledge and agree that the App Provider is not a party to this Agreement and that the App Provider has no responsibility for any of Licensor’s obligations hereunder. Licensor is solely responsible for the Application and for all support related thereto and for the investigation, defense, settlement and discharge of any claim relating to any breach of its representation regarding infringement provided above. the App Provider will have no other obligations whatsoever with respect to the Application including any claims, losses, liabilities, damages, costs or expenses attributable to the use thereof. You and Licensor also acknowledge and agree that the App Provider and its subsidiaries, are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, they will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
11. Term and Termination.
- The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Licensor as set forth in this Section 11.
- You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
- Licensor may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate;
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account; and
- you may contact Licensor and request the deletion of your information. However, in order to do so, you agree to comply with Licensor’s requests for information or assistance to locate your information.
- Termination will not limit any of Licensor’s rights or remedies at law or in equity.
12. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. LICENSOR MAKES NO REPRESENTTIONS OR WARRANTIES AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY DATA AVAILABLE THROUGH THE APPLICATION, AND LICENSOR MAKES NO COMMITMENT TO UPDATE SUCH DATA.
THE INFORMATION PROVIDED BY THE APPLICATION DEPENDS, IN PART, ON INFORMATION PROVIDED OR SELECTED BY YOU OR THIRD PARTIES. THE DATA OR OUTPUT INFORMATION CONTAINED IN THE APPLICATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAILORED SPECIFICALLY TO ANY ONE USER. NEITHER THE LICENSOR OR THE APPLICATION PROVIDE MEDICAL ADVICE, NOR DOES EITHER HAVE ACCESS TO A USER’S MEDICAL HISTORY OR PRESENT HEALTH CONDITION. BEFORE UTILIZING ANY INFORMATION OBTAINED FROM THE LICENSOR OR THE APPLICATION, SEEK THE ADVICE OF A PHYSICIAN, NUTRITIONIST, OR OTHER QUALIFIED HEALTH PROVIDER BEFORE MAKING ANY CHANGES TO YOUR DIET. LICENSOR DISCLAIMS ANY LIABILITY FOR ANY ADVERSE HEALTH CONDITIONS ATTRIBUTABLE TO THE INFORMATION PROVIDED OR SELECTED BY A USER. IF YOU EXPERIENCE ADVERSE HEALTH SYMPTOMS FOLLOWING YOUR USE OF THIS APPLICATION, PLEASE CONTACT YOUR HEALTH PROVIDER(S) WITHOUT DELAY.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY (INCLUDING NEGATIVE HEALTH OUTCOMES OR CONSEQUENCES FROM USE OF THE APPLICATION), PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION IN THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO A CLAIM UNDER 13(b).
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Indemnification. You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
15. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
16. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
17. Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the state or federal courts located in Boulder County, Colorado. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
18. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
20. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
21. Notice. Any notices to Licensor related to this Agreement shall be sent to: