BACtrack View | Terms of Service
Last updated on July 2, 2019
IT IS NEVER SAFE TO DRINK ANY AMOUNT OF ALCOHOL AND DRIVE. DO NOT USE ANY BACTRACK PRODUCT OR THE BACTRACK MOBILE APPLICATION TO DETERMINE WHETHER (1) YOU SHOULD OPERATE A MOTOR VEHICLE OR EQUIPMENT, OR PERFORM ANY OTHER DANGEROUS ACT OR (2) YOUR BLOOD ALCOHOL CONTENT IS WITHIN THE LEGAL LIMIT FOR DRIVING. YOU SHOULD NOT RELY ON ANY BACTRACK PRODUCT OR THE BACTRACK MOBILE APPLICATION TO ESTABLISH SOBRIETY FOR ANY PURPOSE.
CONTENT IN THE BACTRACK MOBILE APPLICATION AND ON THE BACTRACK WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER MEDICAL PROVIDER. WE ARE NOT A LICENSED MEDICAL CARE PROVIDER AND HAVE NO EXPERTISE IN DIAGNOSING OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ALCOHOL ON ANY MEDICAL CONDITION. INFORMATION PROVIDED THROUGH THE BACTRACK MOBILE APPLICATION OR ON THE BACTRACK WEBSITE MAY NOT APPLY TO YOUR UNIQUE MEDICAL CONDITION. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE BACTRACK MOBILE APPLICATION OR ON THE BACTRACK WEBSITE. IF YOU RELY ON ANY SUCH INFORMATION YOU DO SO AT YOUR OWN RISK.
1.1. Governing Agreement
The terms of this agreement (“Terms of Service”) govern the relationship between you and KHN Solutions, Inc. (“KHN” or “us” or “we”) regarding your use of our products and services, which include a device used for the detection of alcohol in the breath (the “BACtrack Device”), related applications for mobile devices and KHN branded websites (collectively, the “Service”). In this agreement, “KHN” means KHN Solutions, Inc. located at 300 Broadway, Suite 26, San Francisco, CA 94133. “KHN” includes subsidiaries, parent companies, joint ventures and other corporate entities under common ownership (“Affiliates”).
This agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
1.4. Grant of a Limited License to Use the Service
1.5. Accessing the Service
You must provide all equipment and software necessary to connect to and use the Service, including, but not limited to (1) a compatible BACtrack Device, if you wish to use the Service to detect alcohol in the breath, and (2) a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Service.
1.6. Use of the Service
The following restrictions apply to the use of the Service:
- You shall not create an Account or access the Service if you are under the age of 13;
- You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument by minors;
- You shall not have more than one Account at any given time and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
- You shall not create an Account or use the Service if you are a convicted sex offender;
- You shall not have an Account or use the Service if you have previously been removed by KHN;
- You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals.
- You shall use your Account only for non-commercial purposes;
- You shall not use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone;
- You shall not use your Account to engage in any illegal conduct or encourage or incite others to engage in illegal conduct;
- You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without the written permission of KHN;
- You shall not access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without KHN’s permission; and
- If you use an SNS in connection with the Service you shall comply with the terms of service of the SNS as well as these Terms of Service.
1.7. Account Information
You understand that in connection with the Service your user ID number, name and profile photo, if any, may be publicly available and that search engines may index your name and profile photo, if any.
1.8. Username and Password
During the Account creation process, you may be required to select a password (“Login Information”). The following rules govern the security of your Login Information:
- You shall not share the Account or the Login Information, let anyone else access your Account, or do anything else that might jeopardize the security of your Account;
- If you become aware of or reasonably suspect any breach of security, including any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify KHN and modify your Login Information;
- You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
- You are responsible for anything that happens through your Account.
KHN reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
1.9. License Limitations
Any use of the Service in violation of the following license limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE IS A VIOLATION OF KHN POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
- Engage in any act that KHN deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms of Service or other policies;
- Make improper use of KHN’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel;
- Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Service;
- Use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third-party software designed to modify or interfere with the Service;
- Without KHN’s express written consent, modify or cause to be modified any files that are a part of the Service;
- Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”); or (2) the enjoyment of the Service by any other person;
- h. Institute, assist or become involved in any type of attack, including distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
- Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by KHN, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
- Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
- Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
- Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person or group, including KHN employees or customer service representatives;
- Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a KHN employee;
- Without KHN’s express written consent, use the Service or any part thereof for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation;
- Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
- Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
- Use any unauthorized third-party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about KHN users or content. KHN may, at its sole and absolute discretion, allow the use of certain third-party user interfaces;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- Bypass any robot exclusion headers or other measures we employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
- Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (2) any connection using programs, tools, or software not expressly approved by KHN;
- Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by KHN;
- Copy, modify or distribute rights or content from any KHN site, or KHN’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
- Solicit or attempt to solicit personal information from other users of the Service;
- Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
- Upload or transmit or attempt to upload or transmit, without KHN’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, KHN MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR KHN SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS
ASSOCIATED WITH YOUR USE OF THE SERVICE, AND KHN IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO THE SERVICE AND OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD-PARTY
INTELLECTUAL PROPERTY RIGHTS.
KHN reserves the right to stop offering and/or supporting the Service or a particular part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, KHN shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by following the instructions at www.bactrack.com.
The Service (including without limitation any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, and chat transcripts) are copyrighted works owned by KHN. KHN reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF KHN. GENERALLY, ACCOUNTS CREATED WITH KHN WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT IN ACCORDANCE WITH THESE TERMS OF SERVICE, INCLUDING ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. User Content
You own your User Content. You hereby grant KHN and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant us to use user-posted content (except any content you submit in response to KHN promotions and competitions or any other content specifically solicited by KHN) ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time.
- USER CONTENT
2.1. Content Screening
You are entirely responsible for all User Content you post or otherwise transmit via the Service. KHN assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate or illegal content or conduct. We have no obligation to monitor User Content. If we choose at any time, in our sole discretion, to monitor the Service, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and we may monitor and/or record your interaction with the Service or communications (including without limitation any chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
2.2. Information Use by Other Members of the Service
2.2.1. Public Discourse & Unsolicited Ideas
The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. KHN cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service or share it via any SNS. KHN shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other materials (collectively “Submissions”) within the Service you understand and agree that KHN (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
KHN IS NOT RESPONSIBLE FOR THE MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST OR SHARE IN CONNECTION WITH THE SERVICE.
2.2.2. You Are Responsible For Your Own Content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others, including any information shared through a SNS.
Information, materials, products or services provided by other users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and KHN assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please contact us promptly using the contact information at the end of these Terms of Service or through a customer support link within the Service.
KHN may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of KHN may violate these Terms of Service.
KHN reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
WE HAVE NO OBLIGATION TO INSPECT, SUPERVISE, OR MONITOR ANY USER CONTENT. HOWEVER, YOUR INFORMATION, INCLUDING BLOOD ALCOHOL CONCENTRATION DATA, LOCATION AND THE CONTENTS OF ALL OF YOUR ONLINE COMMUNICATIONS (INCLUDING WITHOUT LIMITATION CHAT TEXT, VOICE COMMUNICATIONS, IP ADDRESSES AND YOUR PERSONAL INFORMATION) MAY BE ACCESSED AND MONITORED AS NECESSARY TO PROVIDE THE SERVICE AND MAY BE DISCLOSED: (I) WHEN WE HAVE A GOOD FAITH BELIEF THAT WE ARE REQUIRED TO DISCLOSE THE INFORMATION IN RESPONSE TO LEGAL PROCESS (FOR EXAMPLE, A COURT ORDER, SEARCH WARRANT OR SUBPOENA); (II) TO SATISFY ANY APPLICABLE LAWS OR REGULATIONS; (III) WHERE WE BELIEVE THAT THE SERVICE IS BEING USED IN THE COMMISSION OF A CRIME, INCLUDING TO REPORT SUCH CRIMINAL ACTIVITY OR TO EXCHANGE INFORMATION WITH OTHER COMPANIES AND ORGANIZATIONS FOR THE PURPOSES OF FRAUD PROTECTION AND CREDIT RISK REDUCTION; (IV) WHEN WE HAVE A GOOD FAITH BELIEF THAT THERE IS AN EMERGENCY THAT POSES A THREAT TO THE HEALTH AND/OR SAFETY OF YOU, ANOTHER PERSON OR THE PUBLIC GENERALLY; AND (V) IN ORDER TO PROTECT THE RIGHTS OR PROPERTY OF KHN, INCLUDING TO ENFORCE OUR TERMS OF SERVICE. BY ENTERING INTO THESE TERMS OF SERVICE, YOU HEREBY PROVIDE YOUR IRREVOCABLE CONSENT TO SUCH MONITORING, ACCESS AND DISCLOSURE.
2.4. User Interactions
2.4.1 Member Disputes
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service, including interactions through a SNS. KHN reserves the right, but has no obligation, to become involved in any way with these disputes.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
- THIRD-PARTY ADVERTISING
3.1. Third-Party Advertisements
3.2. Links to Third Party Sites and Dealings With Advertisers
KHN may provide links on the Service to third-party websites or vendors who may invite you to participate in a promotional offer in return for receiving an optional component of the Service and/or upgrades. Any charges or obligations you incur in your dealings with these third parties are your responsibility. KHN makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third-party content, goods and/or services. The linked sites are not under the control of KHN and may collect data or solicit personal information from you. KHN is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by KHN of these linked sites.
- COPYRIGHT NOTICES/COMPLAINTS
It is KHN’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). KHN reserves the right to terminate without notice any user’s access to the Service if that user is determined by KHN, in its sole discretion, to be a “repeat infringer.” In addition, KHN accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
- UPDATES TO THE SERVICE
You understand that the Service is an evolving one. KHN may require that you accept updates to the Service you have installed on your computer or mobile device. You acknowledge and agree that KHN may update the Service with or without notifying you. You may need to update third-party software from time to time in order to receive the Service.
- DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
6.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND, EXCEPT FOR ANY EXPRESS LIMITED MANUFACTURER’S WARRANTY INCLUDED WITH THE BACTRACK DEVICE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER KHN NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “KHN PARTIES”) WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (C) ANY ERRORS ASSOCIATED WITH THE SERVICE WILL BE CORRECTED.
6.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE KHN PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE KHN PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE KHN PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE KHN PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID KHN IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID KHN ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH KHN IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER.
YOU EXPRESSLY AGREE THAT KHN IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICE. THE CONTENT PROVIDED THROUGH THE SERVICE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO, AND OTHER MATERIALS, WHETHER PROVIDED BY US, OTHER USERS OF THE SERVICE, OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. INFORMATION PROVIDED THROUGH THE SERVICE MAY NOT APPLY TO YOUR UNIQUE MEDICAL CONDITION. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE SERVICE. IF YOU RELY ON ANY SUCH INFORMATION YOU DO SO AT YOUR OWN RISK. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. IF YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT ASSOCIATED WITH THE SERVICE, AND YOU SHOULD NOT USE THE SERVICE OR ANY CONTENT ASSOCIATED WITH THE SERVICE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF CONTENT ASSOCIATED WITH THE SERVICE, IN WHOLE OR IN PART, OR COMMUNICATION WITH US VIA THE INTERNET, EMAIL OR BY OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND KHN.
YOU EXPRESSLY AGREE THAT YOUR ACTIVITIES WHICH GENERATE THE CONTENT YOU POST OR SEEK TO POST USING THE SERVICE MAY CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF KHN OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT KHN DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, OR CONDUCT OF ANY ACTIVITY OR EVENT THAT OCCURS IN CONNECTION WITH THE SERVICE.
You agree to indemnify, save, and hold KHN, its Affiliates, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, and liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. KHN reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify KHN, and you agree to cooperate with KHN’s defense of these claims. KHN will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
- DISPUTE RESOLUTION
If a dispute arises between you and KHN, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and KHN agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Service (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
7.2. Law and Forum for Legal Disputes
This Agreement and any dispute arising out of or related to it or the Service shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against KHN must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
7.3. Arbitration Option
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
7.4. Improperly Filed Claims
All Claims you bring against KHN must be resolved in accordance with this Legal Disputes Section. All Claims filed or brought contrary to Section 7.2 shall be considered improperly filed. If you file a claim contrary to Section 7.2, KHN shall be entitled to recover its attorneys’ fees and costs, provided that KHN has notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim.
- GENERAL PROVISIONS
9.2. Supplemental Policies
KHN may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
9.3. Entire Agreement
9.4. Language of the Terms of Service
In the event of a conflict between a translation of the KHN Policies and the English version, the English version of the KHN Policies will control.
9.5. No Waiver
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
9.7. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to KHN are of a unique and irreplaceable nature, the loss of which shall irreparably harm KHN and which cannot be replaced by monetary damages alone. Accordingly, KHN shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, as limited by Section 6.2.
9.8. Force Majeure
KHN shall not be liable for any delay or failure to perform resulting from unforeseen circumstances or causes outside the reasonable control of KHN, including without limitation any failure to perform hereunder due to acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
KHN Solutions, Inc.
300 Broadway, Suite 26
San Francisco, CA 94133