General Terms and Conditions KINASTIC App
KINASTIC AG, Klosterstrasse 34, 8406 Winterthur (CHE-169.080.713; "KINASTIC"), has developed software for highly individualized fitness and health coaching (the "Product"). Users receive individual fitness and lifestyle tips in the areas of fitness, nutrition and well-being via the KINASTIC app (the "App").
The following general termsandconditions ("GTC") serve to clearly regulate the mutual relationship between customers and users on the one hand and KINASTIC on the other hand. Special agreements and usages remain reserved. For better understanding KINASTIC refrains from using feminine-masculine double forms.
1. Distribution of the product and field of application
The product is primarily distributed to companies ("Customers"), who purchase from KINASTIC a certain maximum number of temporary license keys for the use of the product against payment ("License"). The license keys are then used to enable the voluntary and free use of the app by employees and/or customers of the company ("Users"); this is done with the aim of thereby promoting the health and motivation of the employee team or the customer base (this is particularly the case with health insurers).
The product and the app are offered for download, among others, via the website of KINASTIC (https://www.kinastic.com/;"Website") as well as via third-party portals (e.g. Google Play and Apple App Store) ("App Stores"; all distribution channels collectively the "Distribution Channels"). These also include demo and free versions, which may be severely limited both in terms of functionality and in terms of time and quality. Proper installation on the end devices is the sole responsibility of the customers as well as the users.
These GTC apply to all relationships between customers and users on the one hand and KINASTIC on the other hand; they apply in particular to the use of the website, the app (incl. demo versions) as well as to all contracts of KINASTIC with customers regardless of the sales channel through which they were concluded.
3. Conclusion of contract
The acquisition of licenses against payment by customers ("licensees") is generally based on individual contracts or by explicit or implied acceptance of offers issued by KINASTIC (both "individual contracts"). Conclusions of contracts are not subject to any formal requirement and can also be concluded orally or by e-mail.
Online orders as well as orders by other means (phone, fax, e-mail or letter) are confirmed by KINASTIC. The contract is concluded as soon as the confirmation reaches the customer.
3.2 Relationship between individual contracts and the GTCs
In the event of contradictions, the provisions of the individual contract shall take precedence over these GTCs. In all other respects, these GTCs shall apply to individual contracts without restriction.
3.3 Information required for individual contracts
The customer is obliged to provide KINASTIC with all information that may be important for the desired use of the product. As a rule, this is minimally the following information:
a. Desired start date ("Start date");
b. Desired number of license keys;
c. The method of delivery of the license keys as well as all information required for this purpose (see section 5.2 below).
KINASTIC assumes no responsibility for the consequence of missing or inaccurate information.
Offers from KINASTIC are valid for two months. Offers made on the basis of inaccurate information are considered to be indicative.
Pricing for licenses is based on the individual contract.
Pricing is generally based on the active use of the app and consists of a fixed base price based on the number of activated licenses and a variable price per active user. The additional costs per active user are usually reduced according to certain thresholds, e.g., on the number of activated licenses (this is to give customers incentives to roll out the app widely and to give as many users as possible the chance and motivation to actively use the app).
Activity is when a user has accessed/started the app at least 2x in the past month.
The compensation is usually calculated monthly by KINASTIC and invoiced at the beginning of the following month. All prices are usually per month and exclude VAT.
Prices published on the website or elsewhere are subject to change without notice.
4.2 Special conditions
Special conditions can also be agreed on an individual contract basis (e.g. for pioneer projects, large and small orders, preliminary and test projects on a fixed price basis, etc.). No claim to renewed granting of the same or similar conditions in subsequent contracts can be derived from the granting of special conditions.
4.3 Right of inspection
Licensees may inspect all documents, figures and statistics that are necessary for the comprehension of the invoice. The standard key figures (usage statistics) are proactively sent to the licensees by KINASTIC with the invoice.
5. Licenses and copyrights
The information, data, graphics and other content contained on the website, in the product or in the app are protected by copyright and may not - except in cases permitted by law - be modified, copied, stored, republished, transmitted, distributed or otherwise made publicly accessible without the consent of the respective rights holder. In this respect, the use of computer programs for the automatic reading of data, such as crawlers (a.k.a. spiders or robots, in short: bots), is also prohibited.
Except as otherwise expressly provided in these TOS, KINASTIC does not grant any express or implied rights to the intellectual property of KINASTIC or any third party.
5.2 Scope of license and use
With the exception of the rights of use expressly stated in these GTCs and the individual contract and provided for by mandatory law, the licensee as well as the users do not acquire any rights to the product, the app and the user documentation. In particular, the licensee and the users are not entitled to decompile, reproduce or edit the product or the app (including bug fixes) or make it available to third parties such as customers of the licensee without KINASTIC's consent. Licensees and users are further not entitled to grant sublicenses. The licensees' right to decryption pursuant to Art. 21 URG remains reserved.
In case of suspicion of non-contractual use, KINASTIC can block/deactivate individual or all license keys at any time. As far as sufficient reasons for suspicion existed, no liability for damages arises from this.
5.3 Method of delivery of license keys
To activate the app, a license key is required in each case. There are the following, freely selectable methods how to distribute and manage the license keys:
A. Own management by the licensee:
The license keys shall be transmitted to the Licensee in the desired number in tabular form. In this case, the Licensee shall be solely responsible for the distribution and administration of the License Keys among the Authorized Users and in particular also for the correct notification of the Licenses to be deactivated and the number of desired Licenses.
B. Automated management/delivery:
It is possible to enter all necessary contact information (especially email addresses) of the potentially authorized users into the KINASTIC system via CSV table. In this case, all potentially authorized users will receive an automated email with the invitation to use the app and activate the license.
C. Delivery/management by user retrieval:
The licensee may promote the product and the app internally and ask all interested persons to register on a specially created subsite of KINASTIC if they are interested. In this case, the license keys will only be activated and deactivated upon corresponding request of the potentially authorized users.
In methods B. and C., all work email addresses are cryptographically hashed and thus pseudo-anonymized. The process preserves the uniqueness of the record while ensuring that privacy remains protected by masking the email and storing it as a non-reversible cryptographic string value. Despite this encryption, the email address is theoretically viewable during the limited onboarding phase by select KINASTIC technical staff who have access to the source code and server. Therefore, email addresses and corresponding emails are stored on KINASTIC's server only until the onboarding campaign for that user is completed. In case the user creates an account in the app, the onboarding email (typically the work email) is deleted from KINASTIC's servers and in any other case the email is kept at least until the onboarding campaign is completed and then automatically deleted. Thereafter, there is also no way for KINASTIC and its employees to trace information back to an individual user; this is not possible for licensees at any time.
5.4 Term / period of validity of the license / termination
Unless otherwise agreed in the individual contracts, the term of each individual contract shall be 1 year from the start date ("Term").
The term is automatically extended for another year if no written notice of termination is received 1 month before the end of the respective term.
Each party is entitled to terminate individual contracts for good cause at any time and without notice.
Upon termination of an individual contract, any right of use of the Licensee and the Users to the Product, the App and the User Documentation shall expire. Unless otherwise stipulated in the contract, the Licensee shall not be entitled to reclaim any license fees already paid in the event of termination of the contract for any reason whatsoever.
5.5 Adjustments to the number of license keys
The number of license keys provided can usually be adjusted monthly, i.e. in unison with the billing period.
In the absence of newer or updated information, KINASTIC will always provide and invoice as many license keys as in the previous period.
The long-term success of the product lies in close cooperation and transparent communication. Only with this KINASTIC can continuously improve its product and meet the needs of its users. Feedback and suggestions for improvement of the project are therefore very welcome and should be sent by email to the following address: firstname.lastname@example.org. Alternatively, the feedback function in the app can be used.
7. Warranty of title
KINASTIC indemnifies Licensees against any liability for infringement of copyrights and other intellectual property rights of third parties, if and to the extent that the infringement of such third party rights has been caused solely by the use of the Product in accordance with this Agreement.
Licensees shall immediately notify KINASTIC in writing of any asserted third-party claims and authorize KINASTIC to conduct its defense, including entering into any settlement. Licensees shall provide KINASTIC with reasonable and appropriate assistance.
Any further liability of KINASTIC towards licensees in case of actual or alleged claims of third parties is excluded.
8. Liability & Limitations of Liability
The tips and advice in the app are aimed at healthy individuals and are not a substitute for medical advice for illnesses or ailments (e.g. knee pain, eating disorders, etc.). The implementation of the tips and advice is the personal responsibility of each user: as with all fitness products, both excess and incorrect execution can severely affect health and well-being. In the event of the occurrence of any pain symptoms or problems, corresponding exercises/nutritional methods should be stopped immediately and a doctor should be consulted if problems persist. Accordingly, any liability for medical damages is excluded to the extent permitted by law.
For other direct or indirect damages, KINASTIC is liable only up to the amount of the applicable annual fee (average of the previous year, if any, otherwise projection to the current year). Liability for indirect or consequential damages is hereby excluded. Limitation of liability and exclusion of liability apply to both contractual and non-contractual or quasi-contractual claims.
Liability for damages caused by intentional or grossly negligent conduct remains reserved.
9. Data security / data protection
KINASTIC attaches great importance to data security and data protection, and KINASTIC undertakes to comply with the legal provisions on data protection. For further information on this topic, please refer to KINASTIC^s DATA PROTECTION DECLARATION , which is also available on the website and is an integral part of these GTC.
In case of contact (online, by e-mail, by form, by telephone, in writing, by fax or by other means of communication) KINASTIC is authorized - until a written revocation - to contact the requesting person by telephone as well as by using those means of communication the requesting person had used or indicated and to send him/her information material.
KINASTIC is entitled, without notice to the contrary, to communicate or exchange data with Customer without encryption. In doing so, the customer accepts the risks involved (including risks of unauthorized access to data or access to network infrastructures, tampering, viruses, malicious codes or other damaging events).
Notifications from KINASTIC are considered to have been made when they have been sent to the last address provided by the customer.
11. Information & complaints
For information and complaints, please use only the following contact options:
Tel.: +41 41 552 48 11
Mail: KINASTIC AG
12. Changes to the GTC
KINASTIC may change the GTC at any time. Customers will be informed in advance in writing or by other appropriate means.
13. Applicable law and place of jurisdiction
All business relations between customers, users and KINASTIC are governed by Swiss substantive law, excluding the conflict of laws provisions.
The exclusive place of jurisdiction is at the registered office of KINASTIC (subject to mandatory places of jurisdiction at the consumer's registered office). KINASTIC reserves the right to prosecute customers or users at any other competent domestic or foreign court.