Changes to the Terms of the Agreement
We may revise and update the terms of the Agreement from time to time at our sole discretion, and we will provide a notice if we make any material changes to the Agreement. All changes are effective as of the effective date included in the Agreement and apply to all access to and use of Foundations thereafter. Your continued use of Foundations following the effective date means that you accept and agree to the changes. Please check the terms of the Agreement from time to time so you are aware of any changes, as they are binding on you.
This summary takes two minutes to read and helps you to quickly understand the main points of the Agreement. It is provided for convenience only and is not legally binding. Because it does not replace the full Agreement, which explains your responsibilities and legal rights, please read the full Agreement to understand the complete picture of our Agreement.
We are Koa Health.
We provide Foundations to you to support and maintain general health and wellness. Your carrier (health care insurance company) has asked us to make Foundations available to you. This Agreement is between you and us.
Foundations only supports your general health and wellness.
It is not a medical device and it does not replace your doctor’s advice. You should always talk to your doctor if you have any concerns about your health. Foundations is not for use in the diagnosis or the cure, mitigation, treatment, or prevention of disease or a replacement for in-person care.
You should only use Foundations for yourself.
Do not try to copy Foundations, sell it to someone else, or use it to break the law.
You have access to Foundations through your insurer.
If you change your insurer or if your insurer asks us, then your access to Foundations may be de-activated.
Foundations works best when it’s updated.
Sometimes we’ll automatically update Foundations, or ask you to update it. This will be to improve the App in some way (for example, to make it more secure). When this happens older versions of Foundations might not work anymore.
Foundations only uses the data it needs.
You can end this Agreement by deleting Foundations.
We will end this agreement if you do not follow its terms.
We provide Foundations for you ‘as is’.
We work hard to make Foundations great at supporting your health and wellbeing, but we cannot guarantee that it will be effective for you.
We are not responsible if you misuse Foundations.
If you do not follow the terms of this Agreement, and that causes harm to someone else, you cannot hold us responsible.
We will solve disagreements through arbitration.
If you and Koa have a disagreement, then you and Koa agree to use an arbitration organization to solve the disagreement.
FULL AGREEMENT – reading time 20 mins
IMPORTANT NOTICE. Foundations is not a medical device. Foundations and any information and/or services provided by Foundations are not intended to be used in the detection, diagnosis, prevention, monitoring, prediction, prognosis, therapy, treatment or alleviation of any condition, disease or vital physiological processes or for the transmission of time-sensitive health information. We make no promise that Foundations will provide any benefit to your mental or physical wellbeing. You should consult your doctor, clinician or appropriate healthcare professional (“doctor”) before making any decisions or doing (or not doing) anything related to your health, and your doctor’s advice must take precedence over the content of Foundations. Any content found in or via Foundations is available only for your convenience and is not a substitute for, nor should it be treated or relied upon as, medical advice. Foundations is not a substitute for a health care professional’s independent clinical judgment or for in-person care, and is not meant to replace medication or any other form of treatment. You should never disregard or delay seeking medical advice because of information obtained through the use of Foundations.
If you are concerned about your stress level, if you are pregnant, or if you have any other concerns or questions about your health or medicines, you should always consult your doctor. If you have an existing mental health condition, you should check with your doctor before using Foundations.
1. License and Restrictions
License. Subject to the terms of this Agreement, Koa grants you a limited, non-exclusive, non-transferable, revocable license to: (a) download, install, and use Foundations for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) on an Approved Mobile Platform (defined below) in accordance with Foundations’ documentation and (b) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 2) made available in or through Foundations, strictly in accordance with this Agreement. For clarity, this license does not include any right to make or distribute copies of Foundations, to use Foundations for the benefit of any third party or to monetize use of Foundations.
Restrictions. You shall not: (a) copy Foundations, except as expressly permitted by this license; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of Foundations; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of Foundations or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from Foundations, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Foundations, or any features or functionality of Foundations, to any third party for any reason, including by making Foundations available on a network where it is capable of being accessed by more than one device at any time; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting Foundations; or (g) use Foundations in, or in association with, safety-critical applications, including medical or life-support systems, or as a substitute for medical advice.
Reservation of Rights. You acknowledge and agree that Foundations is provided under license, and not sold, to you. You do not acquire any ownership interest in Foundations, or its Content and Services available thereon, under this Agreement, or any other rights thereto other than to use Foundations in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Koa and its licensors and service providers reserve and shall retain their entire rights, titles, and interests in and to Foundations, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Mobile Platform. The Approved Mobile Platforms are Apple Inc.’s (“Apple”) iOS and Google LLC’s (“Google”) Android platforms.
If you use Foundations on a Mobile Device running Apple iOS, then the following terms and conditions apply: (a) you acknowledge this Agreement is entered into between you and Koa only, not with Apple; (b) you shall only use Foundations on your Mobile Device in compliance with this Agreement and applicable third party terms, including the Usage Rules set forth in the Apple App Store Terms of Service; (c) Koa, not Apple, is solely responsible for Foundations and any information or content received through Foundations or the services accessible through Foundations; and (d) you acknowledge that, in the event of any third-party claim that Foundations or your possession and use of Foundations infringe that third party’s intellectual property rights, as between Koa and Apple, Koa, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
2. Content and Services
Our Content and Services. Foundations provides you with access to certain features, functionality, and content on or through Foundations (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by this Agreement. Your access to and use of such Content and Services may require you to acknowledge your acceptance of additional terms (which are incorporated in this Agreement upon your acceptance, and your failure to do so may restrict you from accessing or using certain of Foundations’ features and functionality. Any violation of such additional terms will also be deemed a violation of this Agreement.
The Content and Services are 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 from 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.
Foundations is available only to eligible users who have health care insurers (e.g. health insurance providers) that have arranged with Koa to make Foundations available to their beneficiaries. You acknowledge and agree that Koa is acting on behalf of your insurer to make Foundations available to you, and that if you leave your insurer and if your new insurer does not offer Foundations as a benefit, then your access to Foundations may be de-activated. You also acknowledge and agree that, even after changing insurer, you may still have access to Foundations for some period of time. By continuing to use Foundations, you expressly consent to Koa’s continued access to the information provided by your insurer and by you through Foundations.
Third-Party Materials. Foundations 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 content or services, including through your provider’s website (“Third-Party Materials”). You acknowledge and agree that Koa is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Koa 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 acknowledge that your access and use of such are entirely at your own risk and subject to such third parties’ terms and conditions.
3. Updates & Support
Updates. Koa may from time to time and in its sole discretion develop and provide updates to Foundations, 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 Koa has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet, either: (a) Foundations will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
You agree to promptly download and install all Updates and acknowledge and agree that Foundations or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of Foundations and be subject to all terms and conditions of this Agreement.
Support. Koa is not, and you acknowledge your mobile platform provider (e.g., Apple, Google) is not obligated to provide any support or maintenance services to you related to Foundations. Any complaints related to Foundations can be addressed by sending an email to: email@example.com.
4. Collection and Use of Your Information
You acknowledge that when you download, install, or use Foundations, Koa may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of Foundations. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using Foundations or certain of its features or functionality.
5. Term; Termination; Suspension
The term of the Agreement commences when you download Foundations and will continue in effect until terminated by you or Koa as set forth in this Agreement.
Koa may, at any time, change, update, modify, suspend or terminate any features that may be accessed through Foundations, including, without limitation, to improve a service or its functionality; add or remove access to a service; improve ease of use; correct an error or bug; prevent or discontinue harmful or improper access to services; prevent or discontinue unauthorized use of services; comply with a platform provider or government request; comply with a statute or judicial order; or in accordance with our agreement with your health care insurance carrier or doctor.
You may terminate this Agreement by deleting Foundations and all copies thereof from your Mobile Device. Koa may terminate this Agreement at any time without notice if it ceases to support Foundations, which Koa may do in its sole discretion. 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: (a) all rights granted to you under this Agreement will also terminate; and (b) you must cease all use of Foundations and delete all copies of Foundations from your Mobile Device and account. The following paragraphs of this Agreement shall survive termination for any reason: The “Reservation of Rights” paragraph under Section 1 (License and General Use Restrictions), Section 6 (Disclaimer of Warranties), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 11 (Severability), Section 12 (Dispute Resolution; Governing Law), Section 13 (Entire Agreement), Section 14 (Waiver) and Section 15 (Third-Party Beneficiary). Termination will not limit any of Koa’s rights or remedies at law or in equity.
6. Disclaimer of Warranties
FOUNDATIONS IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KOA, 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 FOUNDATIONS, 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, KOA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT FOUNDATIONS 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 LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE APPLE HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO FOUNDATIONS.
7. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KOA 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 FOUNDATIONS OR THE CONTENT AND SERVICES FOR: (A) 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; AND (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ONE HUNDRED DOLLARS ($100) DOLLARS.
YOU ACKNOWLEDGE THAT, TO THE EXTENT PERMITTED BY LAW, APPLE WILL NOT BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF FOUNDATIONS. THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF KOA, IN THE EVENT OF PERSONAL INJURY OR DEATH, OR IN RESPECT OF ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
AS BETWEEN KOA AND APPLE, BUT SUBJECT TO THE TERMS, CONDITIONS AND LIMITATIONS OF THESE TERMS, APPLE WILL NOT BE RESPONSIBLE TO YOU FOR ANY CLAIM RELATING TO FOUNDATIONS APP OR YOUR POSSESSION AND/OR USE OF THE FOUNDATIONS APP, INCLUDING BUT NOT LIMITED TO, (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT FOUNDATIONS FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
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 KOA 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.
You agree to indemnify, defend, and hold harmless Koa 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 reasonable attorneys’ fees, arising from or relating to your use or misuse of Foundations or your breach of this Agreement, including but not limited to the content you submit or make available through Foundations.
9. Export Regulation
You agree to comply with all United States and all other applicable laws, rules, and regulations relating to the export, re-export, or transshipment of Foundations.
10. US Government Rights
Foundations is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to Foundations as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
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.
12. Dispute Resolution; Governing Law
To the full extent permitted by law, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, excluding (1) its conflict of law principles; (2) the United Nations Convention on Contracts for the International Sale of Goods; (3) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (4) the Protocol amending the 1974 Convention, done at Vienna, April 11, 1980. To the full extent permitted by law, the parties declare that they have required that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only, and all correspondence and communications between you and Koa under this Agreement must be in the English language.
Arbitration. To the fullest extent permitted by law, any controversy or dispute arising out of or relating to this Agreement, or any breach thereof, shall be resolved by arbitration conducted in accordance with the consumer arbitration rules (“AAA Rules”) of the American Arbitration Association (“AAA”), and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator mutually agreed upon by the parties, or in the absence of such agreement, within thirty (30) calendar days from the first referral of the dispute to the AAA, as designated by the AAA. The venue for arbitration shall be New York, New York, USA. All arbitration proceedings and submissions, and the arbitration award, shall be in the English language. The arbitral award shall be final and binding. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance: (a) to compel arbitration; (b) to obtain interim measures of protection prior to or pending arbitration; (c) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information; and (d) to enforce any decision of the arbitrator, including the final award. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KOA: (X) ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO ADDRESS CLAIMS ARISING HEREUNDER; AND (Y) EACH MAY BRING CLAIMS AGAINST THE OTHER HEREUNDER ONLY IN YOUR OR KOA’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Confidentiality of Arbitration. Notwithstanding anything to the contrary in the AAA Rules, Koa and you agree that the filing of arbitration, the arbitration proceeding, any documents exchanged or produced during the arbitration proceeding, any briefs or other documents prepared for the arbitration, and the arbitral award shall all be kept fully confidential and shall not be disclosed to any other party, except to the extent necessary to enforce this arbitration provision, arbitral award or other rights of the parties, or as required by law or court order. This confidentiality provision does not foreclose the AAA from reporting certain consumer arbitration case information as required by state law.
Exceptions. Notwithstanding the foregoing two paragraphs, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR FOUNDATIONS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
13. Entire Agreement
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 other terms, the terms of this Agreement shall govern.
15. Third-Party Beneficiary
As to your access to and use of the Foundations mobile application technology, Apple is a third-party beneficiary of this Agreement and may enforce the terms of this Agreement against you as a third-party beneficiary, but only within the capacity of the provider of a mobile platform. Subject to the rights of Apple to enforce this Agreement as a third-party beneficiary, a person who is not a party to this Agreement has no right under any applicable law to enforce any term of this Agreement. Notwithstanding that any term of this Agreement may be or become enforceable by Apple or any other third party, the terms of this Agreement may be varied, amended or modified or this Agreement may be suspended, cancelled or terminated by agreement in writing signed by or on behalf of Koa or this Agreement may be rescinded (in each case), without the consent of Apple or such other third party.
Effective from: June 10, 2021