KENZEN PATCH™ USER EVALUATION TERMS
These Kenzen Patch User Evaluation Terms (“Evaluation Terms”) govern your use of the Internet-connected Kenzen Patch and accompanying software applications and related documentation, which are together known as the “Kenzen Patch System.”
The Kenzen Patch System is made available to you by Kenzen (“Kenzen,” “we” or “us”) because you have agreed to test and evaluate the Kenzen Patch System.
To participate, you must have a mobile device to which you can download and install mobile applications. Kenzen cannot and does not guarantee that the Kenzen Patch System is compatible with or available for any specific mobile device.
Before agreeing to these Evaluation Terms and using the Kenzen Patch System, please read these Evaluation Terms carefully because they constitute a legal agreement between Kenzen and you.
By checking the box you agree that:
- You have read and understand these Evaluation Terms;
- You will comply with these Evaluation Terms; and
- You are legally competent to enter into contracts.
If you do not agree to these Evaluation Terms, then you may not use the Kenzen Patch System.
1. KENZEN PATCH SYSTEM.
The Kenzen Patch System consists of (1) the Kenzen Patch, which is a small continuous monitor that uses sensor technology to measure metrics related to sweat, heart rate, temperature, and motion (“Kenzen Patch”); (2) a mobile platform specifically developed for use with the Kenzen Patch that you download to your mobile device (“Kenzen Mobile App”) and (3) Kenzen’s team dashboard (“Kenzen Web App”).
The Kenzen Patch communicates with the Mobile App and Web App allowing you to view your real-time data through your mobile device.
The Kenzen Mobile App collects your live data and displays it in the Kenzen Web App if your organization has configured this. Your employer or team may use the Web App to view your real-time data to help detect and prevent events related to wellness and safety, communicate with you, and support you to make sure you have everything you need while you are working. The Kenzen Mobile App can enable geo-location using your phone's GPS to display the weather and outdoor metrics if your organization has configured this.
THE KENZEN PATCH SYSTEM IS NOT A MEDICAL DEVICE. NOTHING IN THE KENZEN PATCH SYSTEM IS INTENDED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. CONTACT YOUR HEALTH CARE PROVIDER ABOUT ANY MEDICAL CONDITION. DO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF SOMETHING YOU HAVE LEARNED THROUGH THE KENZEN PATCH SYSTEM. IF YOU THINK THAT YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
2. Your Evaluation Period.
The Kenzen Patch System is made available to you through your employer. You are permitted to use the Kenzen Patch System for the period of time agreed by and between Kenzen and your employer (“Evaluation Period”).
Your Evaluation Period begins on the date that you install on your mobile device the Kenzen Mobile App and create your Kenzen Account, using your email address associated with your employment as described in Section 3 below.
3. Your Kenzen Account.
You are required to create an account before you can use the Kenzen Mobile App (“Kenzen Account”). You agree to maintain the accuracy of the information in your Kenzen Account information. If you provide untrue, incomplete or otherwise inaccurate information, Kenzen may immediately terminate your Kenzen Account, request that you immediately return the Kenzen Patch System and deactivate your use of the Kenzen Patch App.
4. Collection and Use of Data.
The Kenzen Patch System will collect data from your Kenzen Patch and the Kenzen Patch App on your mobile device. Some of this data may identify (directly or indirectly) you, your mobile device or your Kenzen Patch (“Personal Data”). Types of Personal Data that Kenzen may collect include: your name, email address, gender, date of birth, height, weight, heart rate, body temperature, motion, sweat rate, GPS data collected from your mobile phone, and information about your mobile device such as the telephone number assigned to your mobile device and/or MAC address. PLEASE NOTE THAT, IF YOUR EMPLOYER HAS CONFIGURED THE WEB APP, AND YOU OPT-IN TO THE TEAM DASHBOARD, YOUR EMPLOYER WILL HAVE ACCESS TO THE DATA GENERATED BY YOUR KENZEN PATCH.
If these Evaluation Terms conflict or are otherwise inconsistent with a provision of Kenzen’s agreement with your employer, then the provision of the employer agreement will prevail but solely to the extent of the conflict or inconsistency.
In consideration of your right to use the Kenzen Patch during the Evaluation Period, you grant to Kenzen a royalty-free, worldwide, irrevocable, perpetual and transferable license to use, reproduce, transmit, distribute, display and prepare derivative works of the Personal Data and Usage Data resulting from or related to your use of the Kenzen Patch System during the Evaluation Period. Use of Personal Data collected during the Evaluation Period is limited to the delivery of services outlined in the agreement between Kenzen and your employer. Sensor data collected may be used to provide new or additional services for you and your employer only, including, but not limited to, new or improved software features and functionality. Following the Evaluation Period, any Personal Data collected during the Evaluation Period will be destroyed from the Kenzen system upon the termination date of the agreement between Kenzen and your employer, unless otherwise requested or agreed upon in writing.
5. Your Responsibilities.
In consideration of the opportunity to use and evaluate the Kenzen Patch System, you agree that:
- You will promptly notify Kenzen of any failure, error or other malfunction of any part of the Kenzen Patch System.
- You will provide Kenzen with all Feedback regarding the Kenzen Patch System that Kenzen may reasonably request.
- you will not release the results of any performance or functional evaluation of the Kenzen Patch System to any third party without prior written approval from Kenzen.
- You will not use the Kenzen Patch for any commercial or productive purpose that is to Kenzen's detriment or commercial disadvantage, such as for the development of a competing product.
- You (not Kenzen) are responsible for all fees charged by your mobile service provider in connection with your use of the Kenzen Patch System.
- You (not Kenzen) are responsible for compliance with all applicable agreements and policies of your mobile service provider.
- You will use the Kenzen Patch System for lawful purposes only.
Subject to these Evaluation Terms, Kenzen grants you a personal, nonexclusive, nontransferable license to download, install and use the Kenzen Mobile App (in executable object code form only) on a mobile device that you own or control and only in conjunction with your personal use of the Kenzen Patch in the United States during the Evaluation Period.
Kenzen and its licensors reserve and retain all right, title and interest in and to the Kenzen Patch System, including the sole and exclusive ownership of all intellectual property rights relating to the Kenzen Patch System. Any open source or third-party code incorporated in the Kenzen Patch System is covered by the applicable open source or third-party license authorizing its use.
Features of the Kenzen Patch System may change during the Evaluation Period without notice to you. All new features introduced during the Evaluation Period are subject to these Evaluation Terms. Not all features of the Kenzen Patch System will be available to you or available for the entire Evaluation Period.
Except when expressly permitted by Kenzen in writing, you will not:
- Remove, alter or obscure any copyright, trademark or other intellectual property or proprietary notice from any part of the Kenzen Patch System;
- Copy the Kenzen Mobile App except as expressly permitted by Kenzen;
- Modify, translate, adapt or otherwise create derivative works or improvements (whether or not patentable) of any part of the Kenzen Patch System;
- Decompile, reverse engineer, disassemble, decode or otherwise attempt to derive or gain access to the source code of any part of the Kenzen Patch System (unless applicable laws specifically prohibit the foregoing restriction);
- Distribute, rent, sublicense, lease, lend, sell, resell, assign, transfer, transmit or otherwise make available or exploit the Kenzen Patch System (such as though time-sharing, use of service bureau or by otherwise making the Kenzen Patch App available on a network on which it is accessible by more than one device at any time);
- Breach, test, circumvent (or attempt to breach, test or circumvent) any security, copy protection or rights management feature in the Kenzen Patch System
- Gain (or attempt to gain) unauthorized access to or impair any aspect of the Kenzen Patch System or its related systems or networks, except as strictly necessary to use and evaluate the Kenzen Patch System; or
- Launch any program or script for the purpose of scraping, indexing, surveying, data mining or hindering the operation or functionality of the Kenzen Patch System.
7. Confidential Information.
You acknowledge that, in the course of using the Kenzen Patch System, you may obtain information relating to the Kenzen Patch System and to Kenzen, such as trade secrets, know how, invention techniques, processes, programs, schematics, software source documents, data, financial information, and sales and marketing plans or information that you knows or have reason to know is confidential, proprietary or trade secret information of Kenzen (“Confidential Information”). You agree that, at all times both during the Evaluation Period and until the formal commercial release of the Kenzen Patch System, you shall keep in trust and confidence all Confidential Information and not use Confidential Information other than as expressly authorized by Kenzen. You shall not disclose any Confidential Information to any third party without Kenzen’s prior written consent. You also agree to immediately return to Kenzen all Confidential Information (including copies) in your possession, custody or control upon at any time and for any reason. Your obligations of confidentiality do not apply to information which (i) has entered the public domain unless caused by your breach of these Evaluation Terms or any separate Non-Disclosure Agreement (“NDA”) that you signed in connection with your evaluation of the Kenzen Patch System; (ii) prior to disclosure during the Evaluation Period was already in your possession; or (iii) subsequent to disclosure was obtained by you on a non-confidential basis from a third party who has the right to disclose such information to you.
Nothing in these Evaluation Terms grants you (by implication, waiver, estoppel or otherwise) any right, title or interest in or to any of Kenzen’s Confidential Information, except for the limited rights expressly granted pursuant to these Evaluation Terms. If any provision of these Evaluation Terms is less restrictive than the NDA by and between Kenzen and you, then the NDA will govern with respect to Confidential Information.
Kenzen uses technical and organizational measures designed to protect the information that you provide through the Kenzen Patch System against unauthorized access, use, theft and loss. Unfortunately, however, no electronic data transmission is completely secure. Any transmission is at your own risk and we expect that you will use appropriate security measures to protect your information.
We may suspend your use of all or part of the Kenzen Patch System without notice if we suspect or detect any breach of security. If you believe that information you provided to us is no longer secure, please notify us immediately using the contact information provided below.
You are responsible for your actions. You agree to indemnify and defend Kenzen and its directors, officers, employees and agents (“Kenzen Parties”) from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against any of the Kenzen Parties by any third party arising from your violation of these Evaluation Terms or applicable law. Kenzen reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of any of the Kenzen Parties may be made without Kenzen’s prior written approval.
THE PRIMARY PURPOSE FOR GRANTING YOU ACCESS TO AND USE OF THE KENZEN PATCH SYSTEM IS TO OBTAIN FEEDBACK ON PERFORMANCE AND DEFECTS OF THE KENZEN PATCH SYSTEM. THE KENZEN PATCH SYSTEM IS A NEW PRODUCT THAT STILL MAY CONTAIN DEFECTS. KENZEN DOES NOT WARRANT THAT THE KENZEN PATCH SYSTEM IS ACCURATE, COMPLETE, RELIABLE OR ERROR-FREE. THE KENZEN PATCH SYSTEM IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, KENZEN EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PLEASE DO NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE KENZEN PATCH SYSTEM.
Any oral or written advice provided by Kenzen or its agents does not and will not create any warranty.
11. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE KENZEN PARTIES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE OR DAMAGE TO REAL, TANGIBLE OR INTANGIBLE PROPERTY, ARISING FROM OR RELATED TO YOUR USE OF THE KENZEN PATCH SYSTEM DURING THE EVALUATION PERIOD.
YOU AGREE THAT THE MAXIMUM LIABILITY OF THE KENZEN PARTIES UNDER THESE EVALUATION TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT THAT YOU PAID TO KENZEN DURING THE 12 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY AND (ii) $1,000.
YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY SURVIVE ANY TERMINATION OR EXPIRATION OF THESE EVALUATION TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES; ACCORDINGLY, THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU UNDERSTAND AND AGREE, HOWEVER, THAT OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
California Residents: BY AGREEING TO THESE EVALUATION TERMS, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Kenzen may deactivate the Kenzen Patch App and your use of the Kenzen Patch System at any time, without notice, obligation or liability. Deactivation shall constitute notice to you of the termination of the Evaluation Period and your license to use the Kenzen Patch System. Upon deactivation, you shall immediately discontinue all use of the Kenzen Patch System , uninstall the Kenzen Patch App and return (or cause to be returned) to Kenzen the Kenzen Patch and all related information or materials provided by Kenzen to you.
13. Dispute Resolution.
These Evaluation Terms are governed by and construed and enforced in accordance with the internal laws of the State of California, without giving effect to the principles of conflicts of laws of such state. You and Kenzen agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Evaluation Terms. You and Kenzen hereby (a) submit to the jurisdiction of courts of San Francisco Country, California or in over any dispute arising under or related to these Evaluation Terms, waive any objection to such jurisdiction, and if such right exists, waives the right to a jury trial in any such dispute.
Kenzen may develop and implement updates for the Kenzen Patch System. When your device is connected to the Internet and depending on your device settings, updates will automatically download and install or you may receive notice of or be prompted to download and install available updates. You agree that all updates are part of the Kenzen Patch System and subject to these Evaluation Terms. You also understand that updates may modify or delete certain features and functionality.
15. App Marketplace Additional Terms.
When you download the Kenzen Mobile App from a link provided to you, or through Apple, Inc.’s App Store and/or Google Play (each, an “App Marketplace”), you acknowledge and agree that the following terms are part of these Evaluation Terms:
a. You acknowledge that the Evaluation Terms are an agreement between Kenzen and you and not with an App Marketplace. Kenzen, not an App Marketplace, is solely responsible for the Kenzen Patch System. If the Evaluation Terms are less restrictive with respect to the Kenzen Patch App or otherwise conflict with an App Marketplace’s terms of service/use, then the App Marketplace’s terms of service/use shall apply but solely to the extent of the conflict.
b. You acknowledge that no App Marketplace has any obligation to furnish any maintenance and support services with respect to the Kenzen Patch System.
c. Kenzen, not an App Marketplace, is responsible for addressing your or any third-party claims relating to the Kenzen Patch System, including, but not limited to: (i) product liability claims; (ii) any claim that the Kenzen Patch System fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. No App Marketplace makes any warranty whatsoever with respect to the Kenzen Patch System. Kenzen is solely responsible for any product warranty, whether express or implied by law, to the extent not effectively disclaimed.
d. Kenzen, not an App Marketplace, is solely responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the Kenzen Patch System infringes a third party’s intellectual property rights.
e. The App Marketplaces (and their subsidiaries) are third-party beneficiaries of these Evaluation Terms with respect to the Kenzen Patch App and that, upon your acceptance of these Evaluation Terms, the App Marketplace has the right (and deemed to have accepted the right) to enforce the Evaluation Terms against you with respect to the Kenzen Patch App as a third party beneficiary thereof.
16. General Legal Terms.
These Evaluation Terms contain the entire agreement by and between Kenzen and you with respect to your evaluation and use of the Kenzen Patch System. You agree that Kenzen may send you notice via email to the email address you have provided; Kenzen is not responsible for your failure to receive notice if an email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address. Kenzen’s failure to exercise or enforce any right or provision of these Evaluation Terms shall not constitute a waiver of such right or provision. Waivers and amendments to the Evaluation Terms are effective only if in writing and signed by you and Kenzen. If any provision of these Evaluation Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used. Nothing contained in these Evaluation Terms will be deemed to constitute Kenzen or you as the agent or representative of the other or as joint venturers or partners. These Evaluation Terms inure to the benefit of and will be binding upon Kenzen and its permitted successors and assigns. You must not transfer any of your rights or obligations under these Evaluation Terms to anyone else without Kenzen’s prior written consent.
For questions related to these Evaluation Terms, please send an email to info [at] kenzen.com