General Terms and Conditions kinastic AG

The kinastic AG, Klosterstrasse 34, 8406 Winterthur (CHE-169.080.713;“Kinastic„), has developed a software for highly individual 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 coach app (the „App„).

The following general terms and conditions („GTC„) serve to clearly regulate the mutual relationship between customers and users on the one hand and Kinastic on the other. Special agreements and usages remain reserved. For better understanding, Kinastic refrains from using feminine-masculine double forms.

1. Distribution of the product and area of application

The product is primarily distributed to companies („customers„), who purchase a certain maximum number of temporary licence keys for the use of the product from Kinastic against payment („licence„). The licence 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 promoting the health and motivation of the employee teams or the customer base (this is particularly the case with health insurers).

The product and the App are offered for download via the Kinastic website (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.

2. Scope

These GTC apply to all relationships between customers and users on the one hand and Kinastic on the other; 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. Contract

3.1. Principle

The acquisition of licences against payment by customers („licensees„) is generally based on individual contracts or through express or implied acceptance of offers issued by Kinastic (both „individual contracts„). Contracts are not subject to any formal requirements and can also be concluded orally or by e-mail.

Online orders as well as orders placed by other means (telephone, fax, e-mail or letter) are confirmed by Kinastic. The contract is concluded as soon as the confirmation is received by 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 („Startdatum„);
b. Desired number of licence keys;
c. Type of delivery of the licence keys as well as all information required for this purpose (see point 5.2 below).

Kinastic accepts no responsibility for the consequence of missing or inaccurate information.

3.4. Quotes

Offers from Kinastic are valid for two months. Offers that are made on the basis of inaccurate preliminary/accurate information are deemed to be indicative offers.

4. Pricing

4.1. Principles

The pricing for licences is based on the individual contract.

Pricing is usually based on the active use of the App and consists of a fixed base price based on the number of activated licences and a variable price per active user. The additional costs per active user are usually reduced according to certain threshold values, e.g. on the number of activated licences (this is to give the customer an incentive 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 considered to be when a user has activated/started the App at least twice in the past month.

Compensation is usually calculated monthly by Kinastic and invoiced at the beginning of the following month. All prices are generally 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.). The granting of special conditions cannot give rise to any claim to the same or similar conditions in subsequent contracts.

4.3. Right of inspection

Licensees may inspect all documents, figures and statistics that are necessary to understand the invoice. The standard key figures (usage statistics) are proactively sent to the licensees by Kinastic with the invoice.

5. Licenses & Copyrights

5.1. General

The information, data, graphics and other content contained on the website, in the product or in the app are protected by copyright and – with the exception of cases permitted by law – may not be changed, 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 (aka spiders or robots, in short: bots), is also prohibited.

Except as otherwise expressly provided in these GTCs, Kinastic does not grant any express or implied rights to the intellectual property of Kinastic or any third party.

5.2. Licence and scope of use

Kinastic grants Licensees and the Authorised Users the non-exclusive right, limited to the term of the Agreement, to use the Product, the App and the User Documentation for their own purposes and in accordance with the terms of use set forth herein and in the Individual Agreement („contractual 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 error corrections) or make it accessible to third parties such as customers of the licensee without the consent of Kinastic. Furthermore, the licensees and the users are not entitled to grant sub-licences. 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 licence keys at any time. Insofar as sufficient grounds for suspicion existed, this does not give rise to any liability for damages.

5.3. Mode of delivery of licence keys

A licence key is required to activate the App. There are the following freely selectable methods for distributing and managing the licence keys:

a. Own administration by the licensee:
The licence keys shall be transmitted to the licensee in the desired number in tabular form. In this case, the licensee is solely responsible for the distribution and administration of the licence keys among the authorised users and in particular also for the correct notification of the licences to be deactivated and the number of desired licences.

b. Automated management/delivery:
It is possible to enter all necessary contact details (especially email addresses) of the potentially authorised users into the Kinastic system using a CSV table. In this case, all potentially authorised users will receive an automated e-mail with an invitation to use the app and activate the licence.

c. Delivery/management through user retrieval:
The licensee may promote the product and the App internally and request all interested persons to register on a specially set up sub-domain site of Kinastic if they are interested. In this case, the licence keys will only be activated and deactivated upon corresponding request of the potentially authorised users.

In methods b. and c., all work email addresses are cryptographically hashed and thus pseudo-anonymised. The process preserves the uniqueness of the record while ensuring that privacy is protected by masking the email and storing it as a non-reversible cryptographic string value. Despite this encryption, the email address is theoretically visible to selected Kinastic technical staff who have access to the source code and the server during the limited phase of onboarding. Therefore, the email addresses and corresponding emails are only stored on Kinastic’s server until the onboarding campaign for this user is completed. In the event that the user creates an account in the App, the onboarding email (typically the work email) will be deleted from Kinastic’s servers and in any other case the email will be kept at the latest until the onboarding campaign is completed and then automatically deleted. After that, there is no possibility for Kinastic and its employees to trace information back to an individual user; this is not possible for the licensees at any time.

5.4. Term / Period of validity of the licence / 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 by a further 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, all rights 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 licence fees already paid in the event of termination of the contract for any reason whatsoever.

5.5. Adjustments to the number of licence keys

The number of licence keys provided can usually be adjusted on a monthly basis, i.e. in sync with the billing period.

In the absence of more recent or updated information, Kinastic will always provide and invoice as many licence keys as in the previous period.

6. Feedback

The long-term success of the product lies in close cooperation and transparent communication. This is the only way 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 e-mail to the following address: feedback@kinastic.com. Alternatively, the feedback function in the App can also be used.

7. Legal Guarantee

Kinastic indemnifies the licensees against any liability for the 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 exclusively by the use of the product in accordance with the contract.

The licensees shall immediately notify Kinastic in writing of any third-party claims asserted and authorise Kinastic to conduct the defence, including entering into a settlement. The licensees must support Kinastic to an appropriate and reasonable extent.

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 in the event of illness or infirmity (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 over-exercise and incorrect execution can severely affect health and well-being. If any pain symptoms or problems occur, 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 damage 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 undertakes to comply with the statutory provisions on data protection. For further information on this topic, please refer to KINASTIC’S PRIVACY POLICY, which is also available on the website and is an integral part of these GTCs.

10. Communication

In the event of contact being made (online, by e-mail, by form, by telephone, in writing, by fax or by other means of communication), Kinastic is authorised – until revoked in writing – to contact the person making the enquiry by telephone and using the means of communication used or indicated by the person making the enquiry and to send him/her information material.

Kinastic may, without notice to the contrary, communicate or exchange data with the customer in unencrypted form. In doing so, the customer accepts the risks involved (including risks of unauthorised access to data or access to network infrastructures, corruption, viruses, malicious codes or other damaging events).

Notifications from Kinastic are deemed 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 the following contact options exclusively:

E-Mail: support@kinastic.com
Tel.: +41 41 552 48 11
Post: kinastic AG
          Klosterstrasse 34
          8406 Winterthur

12. Changes to the GTCS

Kinastic may change the GTCs 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 commercial register). Kinastic reserves the right to take legal action against customers or users before any other competent domestic or foreign court.

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April 2021