KAYA TERMS OF USE
IMPORTANT-READ CAREFULLY: BY ACCESSING AND USING THE KAYA SERVICE, YOU ACKNOWLEDGE AND AGREE TO BE CONTRACTUALLY BOUND BY THESE TERMS OF USE, INCLUDING THE Privacy Rights and Practices Agreement. IF ANY OF THE TERMS OF USE ARE NOT ACCEPTABLE TO YOU, DO NOT USE THE KAYA SERVICE.
THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, CLINICAL EXPERTISE, PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT. IF YOU HAVE QUESTIONS ABOUT THE SERVICES PROVIDED TO YOU BY KAYA, DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN INDEPENDENT DISCRETION AND RISK.
1. Terms of Use.
(A) Acceptance of Terms. Welcome to Kaya. Kaya Care, Inc. has developed a proprietary software application and hosted website that facilitates employee group mental health sessions with licensed clinicians with the purpose of connecting employees to help build inclusivity and supportive mental health in the workplace (collectively, the “Service”). These Terms of Use are a legal agreement between You and Kaya governing Your use of the Service. By clicking “Accept” or using the Service in any way, You are (1) agreeing to be bound by these Terms of Use, the Privacy Rights Agreement posted on the Site which are incorporated herein by reference (“Privacy Agreement”), or about which You are notified (collectively, the “Agreement”), and (2) confirming that You are 18 years of age or older and able to form legally binding contracts. If You do not agree with all the terms of the Agreement or are not 18 years of age or older, do not use the Service. This Agreement constitutes the entire and only agreement between us and You and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Service, and the subject matter of this Agreement.
(B) Electronic Communications; Right to Modify Terms. You agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing. If You choose to set up an account with us, You agree to provide us with, and maintain in Your Kaya account profile Your current and active e-mail address. This Agreement may be amended at any time from time to time by us without specific notice to You. The latest Agreement will be posted on the Site, and You should review this Agreement prior to using the Service. By accessing the Service, You agree to be bound by the terms of the latest Agreement posted on the Site.
(C) Definitions. In this Agreement, “User,” “You” and “Your” refer to You as the user of the Service. “Kaya,” “we,” “us” and “our” refer to Kaya Care, Inc. and our successors, partners, affiliates, subsidiaries and assigns. “Content Provider” refers to any third party entity, organization or individual that supplies content for the Service. “Content” refers to information available through the Service from Kaya, Content Providers.
(D) Right to Use; Limitations. For so long as You comply with all terms and conditions of this Agreement, Kaya hereby grants to You the limited, personal, non-exclusive, non-transferable right to use the Service. Kaya reserves all rights not expressly granted to You. Kaya is accessible only to Users located in and accessing Kaya in certain jurisdictions within the United States. If You are located in a jurisdiction other than the United States or in areas of the United States in which Kaya is unavailable, You will receive a message to that effect, You will not be permitted to use or charged for use of the Service.
2. Medical Disclaimers.
(A) EMERGENCY SITUATIONS. IF YOU ENCOUNTER OR HAVE A MEDICAL EMERGENCY, PLEASE DO NOT USE THE SERVICE AND INSTEAD CONTACT 911, AN EMERGENCY MEDICAL OR HEALTHCARE PROVIDER OR YOUR LOCAL DOCTOR. IF YOU NEED NON-EMERGENCY MEDICAL OR HEALTHCARE SERVICES, CONTACT A PHYSICIAN, PHARMACIST OR ANOTHER QUALIFIED MEDICAL PROFESSIONAL. The Kaya Service is not the appropriate venue to deal with such situations.
(B) Communication Venue Only. The Kaya Service is a venue for communication purposes only. Kaya is not providing online medical examinations or consultations, is not offering telemedicine, does not provide any patient-specific or patient-identifiable medical evaluation, diagnosis or treatment and does not constitute or communicate information from a medical device or medical equipment. Kaya is not involved in the contact, conversation and/or relationship between patients and healthcare providers concerning a patient’s treatment. Individuals should contact and visit a licensed physician for healthcare treatment. Kaya will not obtain nor does it intend to qualify for any professional healthcare license or approval of any kind to provide access to the Service. We reserve the right in our sole discretion to modify, edit or delete any Content, documents or information appearing on the Site at any time without notice.
(C) No Medical Advice; No Patient-Doctor Relationship. Content available and responses provided through the Service are to be used for general information purposes only, not as a substitute for in-person evaluation or specific medical advice.
KAYA WILL PROVIDE ONLY THE SPECIFIC SERVICES IDENTIFIED HEREIN AND WILL NOT RESPOND TO OR ADDRESS ANY QUESTIONS OF A MEDICAL NATURE, INCLUDING INFORMATION REGARDING THE APPROPRIATENESS OF ANY TREATMENT. THE INFORMATION PROVIDED THROUGH THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL. ANY USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN INDEPENDENT DISCRETION AND RISK. NOTHING COMMUNICATED THROUGH THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.
You acknowledge that although some of the content that is provided to You THROUGH the SERVICE (INCLuding responses) is medical in nature, it does not create a medical professional-patient relationship and does not constitute an opinion, medical advice, EXAMINATION, diagnosis or treatment of any particular condition. No PATIENT-DOCTOR OR OTHER professional relationships shall be formed on or through USE OF THE SERVICE.
(D) Communications Not Privileged. Communications on the Service are not the subject of any particular privileges, including, without limitation, the doctor-patient privilege. Communications on the Service are limited, do not involve in-person evaluations or visits, and do not include safeguards and procedures typical of in-person evaluations by and visits with healthcare professionals.
3. User RESPONSIBILITIES.
(A) User Accounts. You must subscribe to and, if applicable, pay for access to certain portions of the Service. If You subscribe to the Services, You will establish a user name and password for access to Your online account. You are responsible for maintaining the confidentiality of Your user name, password and User account data, and You are solely responsible for all acts, omissions or access to information in Your User account. You will immediately notify Kaya of any unauthorized use of Your user name, password or User account. You should create only one account for the Service. If any Kaya account of Yours has been suspended or terminated, You may not open another account for the Service.
(B) Right to Refuse Service. At any time, without notice, for any or no reason, Kaya reserves the right to refuse Service to anyone, to modify and discontinue any portion or all of the Service, and to restrict, suspend and terminate a User’s account.
4. OWNERSHIP; PROPRIETARY RIGHTS.
(A) Ownership of Service and Site. All right, title, interest and IP Rights in and to the Service (in whole and in part, including, but not limited to, the Documentation, Content, images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Service), the Site, any materials accompanying the Service and Site, and any and all copies and derivations of the same are and shall remain the sole and exclusive property of Kaya or its Content Providers. Unless otherwise allowed pursuant to the terms of a written agreement between You or Your Employer and Kaya, no page from the Site may be copied, reproduced, republished, uploaded, posted, transmitted, framed, commercialized, distributed in any way, or incorporated into any other website or electronic or mechanical information retrieval system, except as expressly set forth in this Agreement. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable U.S. and international copyright, trademark and other proprietary (including but not limited to intellectual property) rights. Other company names, product names and content displayed on the Site may be the trademarks or copyrights of their respective owners. Certain Content accessible through the Service may have different copyright conditions which will be noted in those documents. The copying, redistribution, use or publication by You of any such matters or any part of the Site, except as allowed by this Agreement, is strictly prohibited. You do not acquire ownership rights to any Content, documents or other materials viewed through the Site. The posting of Content, information or materials on the Site by Kaya does not constitute a waiver of any rights in such information and materials.
(B) Limited Right to Download. If made available to You by Kaya, you may download one copy of Content viewed through the Service on any single computer for Your personal, non-commercial use only (but not for resale or redistribution), provided You keep intact all copyright and other proprietary notices. Unless otherwise allowed pursuant to the terms of a written agreement between You or Your Employer and Kaya, modification or use of the Content for any other purpose is a violation of Kaya’s or its Content Provider’s copyrights and other proprietary rights. Unless otherwise allowed pursuant to the terms of a written agreement between You or Your Employer and Kaya, the use of any such material on any other website or networked computer environment is prohibited.
5. NO ENDORSEMENT OF THIRD PARTY PRODUCTS OR SERVICES.
(A) Third Party Products or Services. Kaya may present to Users of the Service products and services offered by non-Kaya entities. Placement of information, logos, links or names of such non-Kaya entities on the Site does not constitute an endorsement or warranty of these entities, their products or services. You take full responsibility for a decision to visit or patronize any such third party site or entity and hold Kaya harmless from any liability arising from such actions. You further acknowledge that no relationship (such as partnership, agent, joint venturer, or employee) exists or should be assumed to exist between Kaya and such Third Party or between Kaya and any third party User of the Service.
6. LIMITED WARRANTIES; DISCLAIMER.
(A) Limited Warranty. Kaya has the right to grant the license and provide the Service to You on the terms of this Agreement. Significant effort has been made to ensure that the information provided by Kaya through the Service is accurate, up-to-date, and complete, but in no event does Kaya represent or warrant the accuracy or completeness of such information. In addition, You expressly acknowledge that the drug information contained in the Service may be time sensitive. It is Your responsibility to evaluate the accuracy, completeness and usefulness of any information, opinion, response or other Content available through the Service, from third parties or obtained through a linked third party site. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific opinion, answer, the Service, Content or any third party service or product.
(B) Disclaimers. EXCEPT AS EXPRESSLY SET FORTH ABOVE: NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, PROVIDED BY OR THROUGH KAYA OR THE SERVICE SHALL IMPLY THE CREATION OF ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER BY KAYA OR CONTENT PROVIDERS. THE SERVICE AND RELATED INFORMATION ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KAYA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KAYA DOES NOT WARRANT OR REPRESENT THAT THE USE OR THE RESULTS OF THE USE OF THE SERVICE WILL BE CORRECT, ACCURATE, TIMELY, RELIABLE OR OTHERWISE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. UNDER NO CIRCUMSTANCES WILL KAYA BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S USE OF THE APPLICATION. USE OF THIS APPLICATION IS AT EACH USER’S SOLE RISK.
(C) Press Releases and Third-Party Press About Kaya. The Service may contain press releases and other information about Kaya and the Service. While this information was believed to be accurate as of the date prepared, we disclaim any duty or obligation to update this information or any press releases. Information about companies other than ours contained in the press release or otherwise, should not be relied upon as being provided or endorsed by Kaya. Likewise, third-party press about Kaya or the Service should not be relied upon as being provided or endorsed by Kaya.
7. INDEMNIFICATION; RELEASE; LIMITATION OF LIABILITY.
(A) Indemnification. You agree to indemnify and hold Kaya, any and all parent, subsidiary, and affiliate organizations, and their respective officers, directors, agents, shareholders, members, managers, advisors, consultants, employees, successors and assigns (collectively, “Protected Parties”) harmless from and against all losses, costs, liabilities, expenses (including reasonable attorneys’ fees and expenses), claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (collectively, “Losses”), that are in any way due to or arising out of Your use of the Service, including when such use is in violation of the Agreement, unless caused by the gross negligence or willful misconduct of Kaya. You further agree to indemnify and hold Protected Parties harmless from Losses arising out of or relating to any agency or third party review, audit, investigation or action with respect to any use or disclosure of Services or data arising out of Your use of the Service, unless caused by the gross negligence or willful misconduct of Kaya. Kaya reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify any of the Protected Parties, and You agree to cooperate with Kaya’s defense of such claims. Kaya will use reasonable efforts to notify You of any such claim, action, or proceeding which is subject to this indemnification upon Kaya becoming aware of it. Kaya shall not be liable or responsible to verify information that You or any other Users provide, access or store or if any such information is not accurate or untruthful, and each User shall indemnify Kaya and the other Protected Parties as a result of any loss, cost or expense arising out of or in connection with any inaccurate or untruthful information provided by the User.
(B) Release. You are responsible for Your acts in connection with the Service. The Service is merely a communication tool. You indemnify, hold harmless and release the Protected Parties from and against any and all Losses arising out of or in any way connected with such dispute. You also agree to release the Protected Parties from any losses, claims or liabilities arising from Your breach of this Agreement, and you hereby agree to indemnify, defend and hold the Protected Parties harmless from any loss, claim or liability arising from or related to the breach by You of this Agreement.
(C) Limitation of Liabilities. IN NO EVENT SHALL KAYA, ITS LICENSORS, SUPPLIERS, CONTENT PROVIDERS OR THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, ADVISORS, CONSULTANTS, EMPLOYEES, SUCCESSORS OR ASSIGNS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, PROFITS, DATA, USE, REVENUE OR OTHER ECONOMIC ADVANTAGE), ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, SITE, SERVICES OR THE AGREEMENT BASED ON ANY THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. IN NO EVENT WILL OUR LIABILITY, OR THE LIABILITY OF OUR LICENSORS, SUPPLIERS, CONTENT PROVIDERS, AND OUR RESPECTIVE PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONSULTANTS, SUCCESSORS OR ASSIGNS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED ONE HUNDRED DOLLARS (US $100.00). SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8. Choice of Law; Dispute Resolution. The Agreement shall be governed by, and construed in accordance with the laws of the State of Alabama, without regard to its conflicts of law provisions. In the event of any dispute, claim, question or disagreement (“Claim”) between You and Kaya arising from or relating to Your use of the Service, You and Kaya will attempt, in good faith, to resolve any Claim within thirty (30) days after written notice of the Claim. Any Claim not so resolved shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, using the Expedited Procedures. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator shall be an individual generally skilled in the legal and business aspects of the subject matter of this Agreement. The arbitrator shall have no authority to impose penalties or award punitive damages. The arbitration shall take place in Jefferson County, Alabama, and the arbitrator shall apply the law of the State of Alabama and applicable rules of evidence. If all parties and the arbitrator agree, arbitration may take place by telephone or by written communication. Unless the arbitrator otherwise directs, the parties, their representatives, other participants, and the arbitrator shall hold the existence, content, and result of the arbitration in confidence. No action, regardless of form, related to the obligations of the parties under this Agreement may be brought by either party against the other more than one (1) year after the cause of action has accrued. In any proceeding to enforce this Agreement, the prevailing party will have the right, in addition to its other rights hereunder, to recover its reasonable litigation costs and reasonable attorneys’ fees.
Nothing in this Section shall preclude any party from seeking equitable relief from a court of competent jurisdiction or exercising any self-help remedies, whether before, during or after the pendency of any arbitration proceeding. The parties agree that taking any such action does not waive any right that either party has to demand arbitration at any time with respect to subsequent or amended disputes claimed or filed against a party after commencement of litigation. BY AGREEING TO THESE TERMS AND CONDITIONS, ALL PARTIES AGREE TO WAIVE ANY RIGHTS TO A JURY OR COURT TRIAL. If any provision of this dispute resolution procedure is held invalid or unenforceable, the remaining provisions shall remain in full force and shall not be affected by the invalidity of any other provision.
9. Entire Agreement; Assignment; Miscellaneous. This Agreement, the Privacy Agreement and any other terms of use constitute the complete and exclusive statement of the agreement between You and us. It supersedes any and all prior or contemporaneous agreement, oral or written, and any other communications, representations, warranties and understanding relating to the subject matter hereof. If there is a conflict between an oral or written representation of any Kaya employee or agent and the Agreement, the Agreement will prevail. The Agreement will prevail over other rules and policies on the Service. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed either a waiver of such provision or a waiver of the right to enforce such provision. If any provision of the Agreement is held by an arbitrator or court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties and the other provisions shall remain in full force and effect. The provision of the Agreement which, by their terms should survive termination or expiration of this Agreement, shall survive the termination or expiration hereof. Kaya may assign this Agreement to any other entity of its choosing, with or without notice to You. You may not assign this Agreement to any other party without the prior written consent of Kaya. Kaya shall not be deemed to have waived any of its rights or remedies unless such waiver is in writing and signed by Kaya. No delay or omission on the part of Kaya in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies on future occasions. The section titles in these Terms of Use are solely used for the convenience of the parties and have no legal or contractual significance.
END OF KAYA TERMS OF USE