General Terms of Service:
inKin Digital Health, Inc. through its free and Premium Social Fitness Platforms (“inKin”) helps users to aggregate their everyday fitness and health data through third party fitness trackers and devices, applications, as well as manual input to empower and inspire users to lead healthier, more active lives while communicating and socializing with each other.
These terms of service (the “Terms”) set forth legally binding terms and conditions that govern your access to and use of all products, applications, services, content, resources, information, materials, features and functionality accessible on or through the inKin website, free and Premium Social Fitness Platforms or the inKin mobile or web applications (the “Applications”) including access to, downloading, installation and use of the Applications themselves (collectively, the “inKin Service”).
Any reference to “you” or “your” in these Terms refers to the person accessing or using the inKin Service, including his or her heirs, assigns or dependents. References to “we” refer to inKin.
Your access to and use of the inKin Service is conditioned on your acceptance of and compliance with these Terms. By creating an inKin account and using the inKin Service, you are agreeing to legally bind yourself to these Terms. If you do not have an account, you agree to legally bind yourself to these Terms by visiting www.inkin.com or using any part of the inKin Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.INKIN.COM OR USE THE INKIN SERVICE
Who May Use the inKin Service:
You must be 16 years or older to use inKin Services. If you are under the age of 16, please do not use the inKin Services. inKin reserves the right to terminate any account and/or otherwise delete any information related to the user if we discover that the user is under the age of 16.
Full use of the inKin Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access, as well as third party devices or applications, e.g. Fitbit, Apple, Samsung, Xiaomi, Nokia Health, Jawbone, Garmin, iHealth, Misfit Wearables, Moves App, etc.
We Do Not Provide Medical Advice; No Endorsement:
The inKin Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the inKin Service, engaging in an exercise program or changing your diet. Your use of the inKin Service does not create a physician-patient relationship or other fiduciary or special relationship that would give rise to duties owed by inKin to you.
If you experience a medical emergency, stop using the inKin Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the inKin Service. If you engage in any exercise program you receive or learn about through the inKin Service you agree that you do so at your own risk and are voluntarily participating in these activities. You are solely responsible for any resulting damage or loss to any party.
Moreover, while inKin encourages an open exchange of information and ideas through the inKin Service, we make no endorsement, representation or warranty of any kind about any posts, messages, information, services, recommendations, or other content made available through the inKin Service by you, or any other person or organization. If you rely on any information or recommendations made through the inKin Service by us, our employees or agents, third parties, other users or guests, you do so solely at your own risk.
You acknowledge that when you use the inKin Service, inKin may use automatic means (including, for example, cookies and web beacons) to collect information about you and your use of the inKin Service. You also may be required to provide certain information about yourself as a condition to using the inKin Service or certain of its features or functionality, and the inKin Service may provide you with opportunities to share information about yourself with others.
Your Account and Protecting Account Security:
Full use of the inKin Service requires that you create an account by providing us with certain information, including a valid email address and strong password. You are solely responsible for safeguarding the security of your account and maintaining the security of your password. You also take sole responsibility for safeguarding and ensuring that appropriate security settings are enabled on the device you use to access the inKin Service. inKin is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials or your failure to safeguard your device.
inKin uses tracking technologies that enable us to recognize the device you use to log in to your inKin account. Please be advised that this may result in you being automatically logged in to your inKin account on the device you use to access your account. If you do not wish to be automatically logged in, you must log out prior to ending your session.
As part of your use of the inKin Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
You are responsible for any activity that occurs under your username and in association with your account. You may use the inKin Service for lawful purposes only. By using the inKin Service, you agree not to submit, post, or transmit any material or otherwise engage in any conduct that:
- Is false, misleading, or deceptive. inKin reserves the right to terminate accounts that contain, or that we reasonably believe to contain, information or content that violates this provision;
- Violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy or other proprietary rights;
- Allows you to gain unauthorized access to the inKin Service, or any account, computer system, or network connected to the inKin Service, by means such as hacking, password mining or other illicit means;
- Is unlawful, threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, tortious, or contains explicit or graphic descriptions or accounts of sexual acts;
- Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, gender identity, race, ethnicity, age, or disability;
- Collects for marketing purposes any email addresses or other personal information that has been posted by other users of the inKin Services;
- Impersonates any person, business or entity, including inKin and its employees and agents, or falsely states or otherwise misrepresents your affiliation with any person, business or entity, including inKin;
- Contains an unauthorized advertisement or solicitation that is “spammy” (in our sole discretion), or that otherwise detracts from the character or purpose of the inKin Service;
- Contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- Encourages conduct that would constitute a criminal offense or that gives rise to civil liability or that otherwise encourages others to commit illegal activities or cause injury or property damage to any other person;
- Results in the posting or transmission of any message anonymously or under a false name;
- Permits any person to access, using your account, any features of the inKin Service that may require registration; or
- Violates the Terms, any other policy associated with the inKin Service, or otherwise interferes with the use of the inKin Service by others (in our sole discretion).
In general terms, inKin shall have the right to take any action it deems necessary, in its sole discretion, to enforce the rights and obligations created by these Terms and to prevent violation of these Terms. As such, inKin’s rights include, but are not limited to, the following:
- Although inKin cannot monitor all content on the inKin Service, particularly user-generated content, you understand that inKin shall have the right, but not the obligation, to monitor, edit, move, delete, or refuse to post, any content in order to determine and/or ensure compliance with these Terms and any other operating rules that may be established by inKin from time to time.
- inKin reserves the right to force forfeiture of any username that becomes inactive, violates trademark, or may mislead other users.
- inKin may, but have no obligation to, remove content and accounts containing content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
- inKin reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
In addition, the inKin Service may include advertisements. In consideration for inKin granting you access to and use of the inKin Service, you agree that inKin and its third party providers and partners may place such advertising and promotions on the inKin Service or on, about, or in conjunction with Your Content (as defined herein). The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
Although the inKin Service is normally available, there will be occasions when the inKin Service will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to a failure of telecommunications links and equipment that are beyond the control of inKin. Moreover, inKin encourages you to maintain your own backup of your personal fitness and health data and reports. In other words, inKin is not a backup service. inKin will not be liable to you for any modification, suspension, or discontinuation of the inKin Services, or the loss of any content.
inKin Ownership of Service and Content:
Except for Your Content (as defined herein), the inKin Service and its underlying technologies are protected by copyright, trademark, patent, intellectual property, and other applicable laws. You may not do any of the following while accessing or using the inKin Service: (1) adopt, use, copy, display, or mirror any inKin tradename, trademark, logo, protectable name, proprietary information, or the layout and design of any page or form contained on a page, except as expressly permitted by these Terms; (2) access or tamper with non-public areas of the inKin Service, inKin’s computer systems, or the technical delivery systems of inKin’s providers, including but not limited to, use of any data mining, data gathering or extraction method; (3) test the vulnerability of any inKin system or breach any security or authentication measures; (4) circumvent, remove, alter, deactivate, degrade or thwart any technological measure implemented by inKin or any of inKin’s providers or any other third party (including another user) to protect the inKin Service; (5) access the inKin Service through the use of any robot, spider, scraper or any other mechanism other than through the inKin Service or inKin API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that inKin provides to you or any other part of the inKin Service. In addition, you agree not to upload, post, email or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software associated with the inKin Service, including any software viruses or any other computer code, files or programs.
You agree not to archive, download (other than through caching necessary for personal use) use, copy, reproduce, adapt, modify, publish, prepare derivative works based upon, distribute, license, offer for sale, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the inKin Service or any portion thereof, except as expressly permitted by these Terms.
Ownership of Your Content:
You may post photos and videos, exercise regimens, food logs, recipes, comments, likes and other content (“Your Content”) to the inKin Service. As between you and inKin, you retain all rights to Your Content that you post to the inKin Service, however, you grant to inKin a perpetual, irrevocable, non-exclusive, fully paid, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform and distribute, reproduce and translate Your Content, including without limitation distributing, through multiple tiers, part or all of Your Content in any and all media or distribution methods (now known or later developed) through any media channels for any purposes. inKin may exercise these rights without compensating you. The content that appears in the inKin Service will be able to be viewed by other users of the inKin Service and through third party services and websites (go to the account settings page to control who sees your content). You should only provide content that you are comfortable sharing with others under these Terms.
You are responsible for Your Content. You represent and warrant that you own Your Content or otherwise have all of the rights to Your Content and that you have all rights necessary to grant us a license to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the inKin Service does not violate any law, regulation or any right of any third-party, including but not limited to rights of patent, copyright, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy. You also warrant that all moral rights in any material that you submit to us or post have been waived. inKin will not be liable for any loss or damage arising from your posting or submission of any unauthorized content in connection with the inKin Service.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by inKin, or obtained from sources other than you.
Third Party Services:
The inKin Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under inKin’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
We don’t become involved in disputes between users, or between users and any third party relating to the use of the inKin Service. When you use the inKin Service, you release inKin and its affiliates, to the fullest extent permitted by law, from claims, damages, and demands of every kind — known or unknown, suspected or unsuspected, disclosed or undisclosed — arising out of or in any way related to disputes between users, or between users and any third party
License Grant to Use the Applications:
Strictly in accordance with these Terms, inKin grants you a limited, non-exclusive, and nontransferable license to, (i) download, install, and use the Applications for your personal, non-commercial use on a device owned or otherwise controlled by you and (ii) access, stream, download, and use on such device the inKin Service made available in or otherwise accessible through the Applications.
You acknowledge and agree that the Applications are provided under license, and not sold, to you. You do not acquire any ownership interest in the Applications or any other rights thereto other than to use the Applications in accordance with the license granted, and subject to all these Terms. inKin reserves and shall retain its entire right, title, and interest in and to the Applications, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
The Applications may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Applications to, or make the Applications 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 Applications available outside the US
Changes to the Terms:
We may change these Terms from time to time. By continuing to use the inKin Service after we post any such changes, you accept these Terms as modified.
We may change, restrict access to, suspend, discontinue, or refuse the inKin Service, or any portion thereof, at any time without notice. In particular, if you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting Customer Support.
You agree that inKin has no responsibility or liability with regard to information that is unavailable to you after your inKin account is terminated or cancelled or your use of the inKin Service is otherwise discontinued.
Disclaimer of Warranties:
YOU AGREE THAT YOUR USE OF THE INKIN SERVICE IS AT YOUR SOLE RISK. BECAUSE OF THE NUMBER OF POSSIBLE SOURCES OF INFORMATION AVAILABLE THROUGH THE INKIN SERVICE, AND THE INHERENT HAZARDS AND UNCERTAINTIES OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS, INACCURACIES OR OTHER PROBLEMS WITH SUCH INFORMATION. IF YOU RELY ON THE INKIN SERVICE OR ANY MATERIAL AVAILABLE THROUGH THE INKIN SERVICE, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE INKIN SERVICE.
WE PROVIDE THE INKIN SERVICE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INKIN, 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, 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, INKIN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE INKIN SERVICE 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.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INKIN 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 INKIN SERVICE FOR:
- PERSONAL INJURY, 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 INKIN SERVICE
- 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. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Agreement to Arbitrate and Class Action Waiver:
PLEASE READ THIS SECTION CAREFULLY.
In the event of any controversy, claim or dispute (“dispute”) related to or arising out of your use of the inKin Service, other than disputes related to or involving inKin’s intellectual property, you and inKin mutually agree to the following dispute resolution procedure:
The parties will first attempt in good faith to resolve any dispute by informal negotiation. The informal negotiation period will begin when the party asserting the dispute sends a written notice to the other party describing the facts and circumstances of the dispute. You may send such notice to inKin to [email protected] If, after sixty (60) days from the date the notice of dispute is sent, the parties have been unable to resolve the dispute, either party may commence binding arbitration. The parties may agree to extend the informal dispute resolution period by mutual written agreement.
If the parties are unable to resolve the dispute through informal negotiation, you and inKin agree that exclusive jurisdiction for the dispute shall be final and binding arbitration before one arbitrator to be mutually agreed upon by both parties. If the parties cannot agree on the selection of an Arbitrator, they shall each select one Arbitrator from the list of qualified JAMS arbitrators and those two Arbitrators shall select the person who shall serve as the Arbitrator for such dispute. The Arbitration shall be initiated in New York, New York, unless the parties mutually agree to an alternative location. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures available at jamsadr.com. The arbitral tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. Judgment on any potential award may be entered in any court having jurisdiction.
YOU UNDERSTAND THAT BY USING THE INKIN SERVICE, YOU ARE HEREBY GIVING UP YOUR RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.
You have the right to opt out of this agreement to arbitrate by providing written notice of your intention to do so within 30 days of your first acceptance of these Terms. Your notice should include your first and last names and mailing address and should clearly indicate that you are opting out of this agreement to arbitrate. Your notice should be sent to [email protected]
ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS. Neither party shall have the right to have a dispute heard as a class, consolidated or representative action and no arbitration or proceeding can be combined with another without the prior written consent of all parties to the proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If any clause within this “Agreement to Arbitrate and Class Action Waiver” provision is found to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the enforceability or validity of any other portion of this provision, which shall remain in full force and effect and be construed as if the invalid or unenforceable portion were not part of the provision.
Choice of Law:
These Terms shall be construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles. The parties acknowledge that this policy evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Policy shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
Choice of Forum:
By using the inKin Service, you agree that the exclusive jurisdiction for any dispute not subject to the arbitration provision discussed above shall be the state and federal courts located in New York, New York.
Limitation of Time to File Claims:
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE INKIN SERVICE MUST BE COMMENCED OR SUBMITTED TO ARBITRATION WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to indemnify, defend, and hold harmless inKin 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 inKin Service or your breach of this these Terms, including but not limited to the content you submit or make available through use of the inKin Service.
inKin may assign these Terms at any time without notice to you. You are prohibited from assigning or delegating these Terms and any attempt to do so shall be null and void.
In the event that any portion of these Terms is found to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the enforceability or validity of any other portion of these Terms, which shall remain in full force and effect and be construed as if the invalid or unenforceable portion were not part of the Terms.
Please contact us if you have any questions about these terms at [email protected]
Effective Date: November 21, 2017