Google Play Mobile Application EULA

MOBILE APPLICATION END USER LICENSE AGREEMENT

 

This Mobile Application End User License Agreement (“EULA”) is a binding agreement between you or the individual or legal entity you represent (“You” or “Your”) and Kalogon, Inc. (“Kalogon” “We” “Us” or “Our”). This EULA governs Your use of the Kalogon mobile application You download from the Google Play Store® including all associated services and related documentation, images, material, content, software, systems, applications and technology (collectively “App”).  The App is licensed and not sold to You for Your own personal, lawful, and non-commercial use or for Your organization’s lawful internal business purposes, as applicable, in connection with the use of one or more of Kalogon’s packaged products, including, but not limited to, Orbiter, Orbiter Med, Orbiter Aviation, Booster by Kalogon, and Sentinel powered by Kalogon and all associated documentation, material, software, information and technology of such product or products (each referred to as a “Device” and collectively as the “Devices”). Please carefully read this EULA and Our Privacy Policy to make an informed decision. To view the Privacy Policy, you may click the “Privacy Policy” link displayed on the app store or by clicking the “privacy” link displayed directly within the App. 

 

KALOGON PROVIDES THE APP SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND IN OUR PRIVACY POLICY AND ON THE CONDITION THAT YOU EXPRESSLY ACCEPT AND AGREE TO COMPLY WITH THEM. BY DOWNLOADING AND USING THE APP YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND EXPRESSLY AGREE TO THE TERMS OF THIS EULA AND THAT YOU ARE LEGALLY BOUND BY THE TERMS OF THIS EULA; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A LEGALLY BINDING AGREEMENT; (C) CERTIFY THAT YOU ARE AT LEAST 15 YEARS OLD OR OLDER; (D) TO THE EXTENT APPLICABLE, IF YOU ARE A FAMILY MEMBER, LEGAL GUARDIAN OR OTHER LEGAL REPRESENTATIVE OF THE USER USING A KALOGAN DEVICE USED WITH THE APP, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND POWER TO ENTER INTO THIS EULA ON BEHALF OF THE KALOGON DEVICE USER AND BIND SUCH USER TO THIS EULA; AND, (F) TO THE EXTENT APPLICABLE, IF YOU ARE AN EMPLOYEE OR REPRESENTATIVE OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO ENTER INTO THIS EULA AND BIND SUCH CORPORATION OR OTHER LEGAL ENTITY, AS APPLICALBE, TO THIS EULA.  

 

By accepting the terms of this EULA, You agree to them, to comply with them, and to be liable for Your failure to do so. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA OR OUR PRIVACY POLICY, WE WILL NOT AND DO NOT LICENSE THE APP TO YOU OR GRANT YOU ANY RIGHT TO ACCESS OR USE THE APP AND YOU ARE NOT ALLOWED TO ACCESS OR USE THE APP ON ANY OF YOUR MOBILE DEVICES. IF YOU DOWNLOADED THE APP AND DO NOT ACCEPT THE TERMS OF THIS EULA OR OUR PRIVACY POLICY, YOU SHOULD DELETE THE APP FROM YOUR MOBILE DEVICE.  

1. Grant of License. 

Subject to Your compliance with the terms of this EULA, Kalogon grants You a non-exclusive, revocable, non-sublicensable, non-transferable, and limited license to download, install and use the App for Your own personal, non-commercial use, for the Kalogon Device user’s own personal, non-commercial use, or for Your organization’s own lawful internal business purposes (as applicable) on a mobile device You own or control, as applicable. The terms of the license granted to You under this EULA and this EULA will govern all Updates (defined in Section 3 below) to the App.  

1. Privacy Policy. 

Your use of the App is also subject to the terms and conditions of Kalogon’s Privacy Policy. Our Privacy Policy, including any amendment in effect, is fully incorporated herein by reference as if it was fully stated in this EULA and shall constitute to be part of this EULA. If there is any conflict between the terms of this EULA and the terms of Our Privacy Policy, the terms of this EULA will govern. 

1. App Updates. 

Kalogon may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches and other corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety or in part certain features and/or functionality of the App. You agree that Kalogon has no obligation to provide You with any Updates or to continue to provide or enable any particular features or functionalities of the App. Based on Your mobile device settings when Your mobile device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) You may receive notice of or be prompted to download and install available Updates. If You decide not to download any of Our Updates, certain functions or features, including the security, of the App may not properly perform, affect Your experience, and/or affect Your security. All Updates will be deemed part of the App and be subject to the terms and conditions of this EULA. 

1. Ownership.

You understand and agree that the App is provided to You under the limited license granted to You under this EULA and not sold to You. You do not acquire any kind of right, title or interest in or to the App under this EULA or any other rights of any kind other than to use the App in accordance with the license granted to You under this EULA and subject to Your compliance with this EULA. Kalogon alone (and Our licensors or service providers, as applicable) own and shall own all right, title and interest, including, without limitation, all copyrights, trademarks, and other intellectual property and related rights in and to the App and any Updates, in and to the App. Any suggestions, ideas, know-hows, enhancement requests, improvements, recommendations, feedback, responses You provide to Our surveys, or other information provided by You concerning or relating in any way to the App or Kalogon’s Devices used with the App (collectively “Feedback”) shall be solely owned by and the sole property of Kalogon.  Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the App is and shall at all times be solely owned by Kalogon or Our licensors or service providers, as applicable, as shall any and all patent rights, copyrights, trade secrets, trademarks, copyrights, and all other intellectual property and associated rights, on worldwide basis. Kalogon along with Our licensors and service providers fully reserve any and all rights not expressly stated in this section or in this EULA.    

1. Third-Party Services.

The App may include materials or content provided by third parties, including open-source code, components, or software (“Third-Party Services”). Use of the App also requires Third-Party Services such as a compatible mobile device, internet access and a telecommunications carrier. Obtaining and maintaining the mobile device and services necessary to use the App is Your sole responsibility. We are not responsible for mobile device defects, lack of or interruption in service, or other issues arising from Third-Party Services. You are responsible for Your use of those Third-Party Services on Your mobile device and for complying with the applicable third-party terms and payments of all third-party fees associated with any carrier service plan You use in connection with Your use of those services (such as voice, data, SMS/MMS, roaming or other fees charged by the carrier). You acknowledge and agree that Kalogon is not responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, availability, interruptions and/or delay in services, intellectual property rights compliance, legality, decency, quality or any other aspect of any of those. Kalogon does not assume and will not have any liability of any kind to You or any other person or entity for any Third-Party Services. Any use of Third-Party Services by You is at Your sole risk and liability and governed by the terms and conditions of the applicable service provider of the Third-Party Services and not Kalogon. 

App Downloaded from the Google Play Store®: You and Kalogon acknowledge that this EULA is entered into between You and Kalogon and not with Google LLC or any of its related entities.  If You download the App from the Google Play Store®, this EULA incorporates by reference the Google Play Terms of Service published by Google LLC specific to the jurisdiction in which You reside (e.g., for U.S. residents, this is located at https://play.google.com/intl/en-us_us/about/play-terms/index.html). For purposes of this EULA, Kalogon is considered the “Developer” of the App as defined in Google Play’s Developer Distribution Agreement (“DDA”) published by Google Play and located online at https://play.google/developer-distribution-agreement.html. If any terms of this EULA conflict with the terms of the DDA, the applicable terms of DDA will control. You also acknowledge that You have reviewed the Google Play Store® Terms of Service applicable to the jurisdiction in which You reside (e.g., for U.S. residents, the terms are located at play.google.com/about/play-terms/index.html) and agree that such terms apply to Your use of the App downloaded from that platform. You understand and agree that You are only permitted to use the App made available on Google Play Store® on Android mobile devices that You own or control.  

 

1. Restrictions on Use. 

You agree that You will not, and will not allow anyone else to do any of the following: (a) copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the App; (b) reverse engineer, disassemble, decompile, decrypt, decode or otherwise attempt to derive or gain access to the source code of the App; (c) remove, delete, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Kalogon or of its licensors or service providers of the App; (d) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; (e) use the App for any revenue generating endeavor, commercial enterprise, or other commercial purpose of the App not expressly authorized under this EULA; (f) use or permit the use of the App to create a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Kalogon; (g) use the App to communicate with any wireless technology provided by a third-party other than Kalogon; (h) use the App to send automated queries to any website or to send any unsolicited commercial e-mail; or, (i) violate any applicable law, rule or regulation in connection with Your access to or use of the App.

1. Modified Devices and Operating Systems.

Kalogon will have no liability for errors, unreliable operation, or other issues resulting from Your use of the App on or in connection with rooted or jail broken mobile devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including, but not limited to, use of modified versions of the operating system (collectively, “Modified Devices”). Use of the App on Modified Devices will be at Your sole risk and liability.

1. Your Account Login Credentials Protection Responsibilities. 

You are responsible for maintaining the confidentiality and security of Your user login identification and password for the App. Please note that You will remain logged into the App until You manually log out.  Kalogon is not liable in any way to You if You do not keep Your login credentials confidential and secure or use easy-to-guess login credentials, and, as a result, Your information is accessed or intercepted by any unauthorized person or entity, either in transit or at rest, at Your home, business, or other place of access.  YOU SHOULD NOT USE THE APP ON PUBLIC WI-FI OR WHENEVER OR WHEREVER YOUR USE OF THE APP IS NOT OVER A SECURE WI-FI OR OTHER SECURED NETWORK CONNECTION. Kalogon uses acceptable industry standard security measures to keep Your information confidential and secure maintained within systems that Kalogon owns or controls, but Kalogon is not responsible for the security of Your information stored on Your mobile device or when electronically transmitted from Your mobile device to Kalogon. In this respect, You understand and expressly agree that You will be solely responsible and liable for any act or omission by any person or entity using Your App account login credentials regardless of whether You knew or You authorized such person or entity to use Your login credentials to access or use the App and  regardless of whether such access or use was from a mobile device You own or control.   

In addition to keeping Your password confidential and securely stored, Your password should be strong and not the same password You use for any other online account You have. We also encourage You to close the App when not in use to avoid any unauthorized use of Your login credentials to Your App account.  Please note that when You close the App this will cause Your paired Device to disconnect from the App.  When You sign back into the App, simply use the unique PIN You received for Your Device to re-link Your Device to the App.

1. Collection and Use of Personal Data. 

You agree that You will only provide Us with information that is current, truthful, accurate, and complete. You understand and expressly agree that when You download, access and use the App You will be providing Kalogon via the App with the following types of data and information: 

1. Personal Information.  Your personal information such as Your name, phone number, email address, physical mailing address and any other contact information You provide Us for You and/or the individual under Your care or supervision, as applicable.  We collect and use this information to communicate with You about Our App, Our Devices and associated services including for marketing and promotional purposes. You have the option to limit the types of communications We send to You by adjusting Your communication preferences within in Your App account. 

2. Indirect User Data.  Data that could be reasonably linked to Your personal information that Kalogon collects via automatic methods such as Your IP address, device usage, device type, device operating system, device ID, the country from where You use the App, and Your geolocation. We use this data to monitor the performance, operation, functionality, and security of the App, for Kalogon’s internal analytics and reporting purposes, and to full Our legal obligations under applicable law. 

3. Log and Usage Data.  Data is automatically collected by servers owned or controlled by Kalogon when You access or use the App of which are recorded in Our electronic files. Depending on how You interact with the App, log and usage data may include Your IP address, mobile device information, App features You use, system activity, and error reports. Kalogon uses this data to monitor the performance, operation, functionality, Your experience and preferences, and security of the App, for Kalogon’s internal analytics and reporting purposes, and to fulfill Our legal obligations under applicable law. 

4. Mobile Device Access.  Kalogon may request You to grant it access or permission to certain features of Your mobile device including Your Bluetooth® settings in order for the Kalogon devices to communicate with the App according to Your selected notification settings, to provide You with the services available within the App, to monitor and maintain the performance and operation of the App, for troubleshooting, and for Kalogon’s internal analytics and reporting purposes.  You have the option to either grant or deny such access or permissions to Kalogon at any time. You also have the option to change Kalogon’s access or permissions at any time by changing the settings in Your mobile device. 

5. Device Personal Usage Data, Device Analytics, Environmental Usage Statistics.  Data that records the operating parameters of the Kalogon Devices and automatically collects data about Device use and non-use, air pressures, battery charge levels, connected Wi-Fi networks, number of hours seated each day, when You (or the individual under Your care or supervision) sit on a cushion, when You (or the individual under Your care or supervision) stop sitting on a cushion, sit detection counter, the number of adjustments made to the pressure settings, the average duration of device non-use, the typical time between use and non-use of the Device, the longest duration of Device use, data about wheelchair and accessories, cushion user leakage data, ambient temperatures, and water/moisture detection, sensations and daily activity, and preferences and experiences. We only collect this data if You (or the individual under Your care or supervision and You enable this feature under the settings within Your App account.  We use this data to monitor the performance, operation, functionality, feature preferences, and security of the App, to optimize Our Devices by body type, to develop better posture techniques, to alert You (or the individual under Your care or supervision) that You (or the individual under Your care or supervision) is bottoming out or are at risk, to share in an anonymized and summarized format the average setpoints with Your (or the individual who is under Your care or supervision) clinician or other health care provider, for Kalogon’s internal analytical and reporting purposes, and to improve or expand the features, functionality, operation, performance and services of the App and/or Our Devices. 

6. Health Information.  We collect Your (or the individual who is Your care or supervision) biological data and medical history relating to Your (or the individual under Your care or supervision) such as demographics, health current diagnosis including mobility levels), perceived comfort, and physical characteristics.  We use health information to provide insights into Your usage and offer comparisons to users with similar profiles. 

7. We also collect some of the above information and data to monitor Your compliance with this EULA and applicable laws, to investigate abuse or fraud, for certain purposes described in Section 10 below, and for Aggregated Statistics (as defined in Section 12 below). 

For HIPAA Regulated Entities and Practitioners: If You are health care professional user of the App for an individual who is under Your care or supervision and who is using a Kalogon Device with the App, You acknowledge and expressly agree to Kalogon’s access, collection and use of Your own personal information, the personal information of the individual under Your care or supervision that You supply to Us via the App, and to all actions taken by Us with respect to all such data and information in accordance with Our Privacy Policy and in accordance and to the extent permitted by applicable law. Further, You understand and expressly agree that You are solely responsible for obtaining any and all patient consents or authorizations required by the U.S. Health Insurance Portability and Accountability Act of 1996 ("HIPAA") before You supply any “protected health information” (as that term is defined under HIPAA) of the individual who is under Your care or supervision to the App. Kalogon requires a written and executed HIPAA Business Associate Agreement (“BAA”) be entered between You and Kalogon in accordance with HIPAA requirements. To obtain Kalogon’s standard BAA, please email your request to: contact@kalogon.com.

1. Sharing Your Information.  Kalogon does not sell any of your personal information or data to any third party. 

1. We do not transfer or share any of Your personal information or data to data brokers or any data resellers. 

2. We only share Your personal information or data with Our licensors and services providers who have a need to access and use such information or data to support the availability, performance, operations, functionality, security, or improvements or enhancements of the App and associated services and only to the extent of the information or data needed, and for Kalogon to perform its legal and regulatory obligations under applicable laws. 

3. We may share Your personal information or data to establish or exercise Our legal rights, to defend against a legal claim, and/or to investigate, prevent, or take action regarding possible illegal activities, suspected fraud, safety of person or property, or violation of contract or law.  

4. We may share Your personal information or data if compelled by any governmental body (such as, without limitation, a subpoena, warrants, or other legal or process) or to law enforcement. 

5. We may share Your personal information or data in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of Our company assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information or data in Our possession is among the assets transferred. 

6. We may share Your personal information or data with Our insurers and other professional advisors, including, but not limited to, Our legal counsel, accountants, consultants, and auditors who have a need to know Your personal information or data to support Our operations and/or fulfill Our legal and regulatory obligations under applicable law.

7. We may ask if You would like to share Your personal information and/or data with third parties who are not described elsewhere in this EULA.  We will only disclose Your personal information or data in this context with Your express consent.  

1. Location of Processing. 

Kalogon’s operations are located in the United States. Your personal information and data are stored and processed in physical and/or cloud data servers located in the United States.   

1. Aggregated Statistics. 

You acknowledge and agree that Kalogon will collect and compile data and information related to Your access and use of the App in an aggregate and anonymized manner (“Aggregated Statistics”) to, without limitation, compile statistical and performance information to the provision and operation of the App, for analytical purposes, for compliance reporting obligations, for business or marketing purposes, and to assist Us in understanding Our App and Kalogon Devices users’ preferences, experiences, usage patterns, and to expand the performance, operations, functionality, features, security or otherwise to improve the App and associated Kalogon Devices used with the App. Aggregated Statistics will not personally identify You (or the individual who is under Your care or supervision) or be reasonably capable of being associated with You (or the individual who is under Your care or supervision). All rights, title, and interests in and to Aggregated Statistics, including associated intellectual property rights, is and shall solely owned by Kalogon. You understand and agree that Kalogon may make Aggregated Statistics publicly available in compliance with applicable law and use Aggregated Statistics to the extent and in a manner consistent with applicable law. 

1. Medical Advice Disclaimer. 

Kalogon is not engaged in the practice of medicine. You understand and agree that Kalogon is not, by reason of supplying the App, providing any medical opinions, advice or services of any kind. You also understand and agree that Kalogon, in providing the App, is not acting as a physician, clinician, or any other type of professional health care provider. The content and operation of the App is not, and must not be considered or relied upon as, medical or healthcare advice, opinion, or services. You further understand and agree that You are solely responsible for obtaining advice and treatment for Your health conditions, and that You are responsible for seeking, and will seek, such professional advice and treatment from qualified health care professionals. The App and information generated by the App is not a substitute for professional health care monitoring, treatment or care. Any and all data used from the App will be at Your own initiative and at Your sole risk.

1. Our Privacy and Security Measures. 

No method of transmission over the internet or any method of electronic storage is 100% secure. Therefore, We cannot guarantee absolute security. Kalogon implements acceptable industry standard administrative, physical, and technological measures to protect the confidentiality, integrity, and availability of personal data, including health data, that We receive from You via the App and within Kalogon’s possession, including, but not limited to, policies and procedures to manage the maintenance of privacy and security controls, encryption at rest and in transit, firewalls, secure web protocols, logging, monitoring, and auditing, back-up processes, password protection, staff training, security incident procedures, contingency plan, workstation security, access control, audit controls, and risk assessments. Kalogon will maintain the confidentiality of all such data within its possession in conformance HIPAA for “protected health information” and applicable data protection law. 

1. Our Intellectual Property Rights.

Kalogon owns all rights, title, and interests in and to the App, including all associated intellectual property rights, on a worldwide basis. The App is owned by Kalogon and is protected by United States copyright and trademark laws and international treaty provisions. All content, trademarks, service marks, trade names, and logos are either owned by Kalogon or used with permission or licensed to Kalogon from third parties, and nothing stated or excluded from this EULA is or shall be construed as granting You, by implication, estoppel, or otherwise any license or right of any kind to use any of Kalogon’s or any of its licensor’s or service provider’s intellectual property. Also, content displayed in the App is either the property of Kalogon or used by Us with permission or licensed to Us by third parties. You are strictly prohibited from using or authorizing the use of any content that is not expressly permitted under this EULA or in any manner that is not consistent with the terms of this EULA. You shall not remove or allow anyone else to remove, modify, or obscure any proprietary rights legend from the App or from any content within the App. Except as expressly authorized under this EULA. Your use of Kalogon’s intellectual property and/or the intellectual property of Kalogon’s licensors or service providers is strictly prohibited without the prior written authorization of an authorized representative of Kalogon or the applicable intellectual property rights holder, as applicable.

1. Third-Party Intellectual Property Rights. 

You and Kalogon acknowledge that, in the event of any third-party claim that the App or Your or any of Your authorized user of the App infringes, misappropriates or violates such third party’s intellectual property rights, Kalogon and not the app store from where You downloaded the App will be responsible for the investigation, defense, settlement and discharge of any such third-party intellectual property infringement claim. Should the App, or any parts or components of the App, be found to infringe, misappropriate or violate any intellectual property rights of a third party, Your sole and cumulative remedy and Kalogon’s sole and cumulative liability to You will be to either (a) immediately stop using the App or (b) use a non-infringing version of the App should We choose, in Our sole discretion and subject to Our ability to do so, to provide You with a non-infringing version of the App. If You decline to download and use the non-infringing version of the App that We offer you, You understand that Kalogon will have the right to terminate this EULA, terminate Your App account, and terminate Your ability to access and use the App without incurring any liability of any kind to You. 

1. Indemnification.

To the maximum extent permitted by law, You agree to defend, indemnify, and hold harmless Kalogon, its licensors and service providers including Our and their respective directors, officers, employees and agents, affiliates and service providers from and against any and all third-party claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to Your: (a) use of the App in violation of this EULA; (b) infringement, misappropriation, or violation of Kalogon’s, its licensors’, services providers’ or any third-party’s intellectual property including associated intellectual property rights in and to such intellectual property; (c) violate of any provisions or terms of provisions in this EULA; and/or (d) violate applicable law. 

1. Disclaimers and Exclusions.  

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND EXPRESSLY AGREE THAT KALOGON PROVIDES THE APP TO YOU “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF KIND. YOU FURTHER UNDERSTAND AND EXPRESSLY AGREE THAT YOUR USE OF THE APP IS AT YOUR SOLE INITIATIVE AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KALOGON, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS AND THEIR RESPECTIVE AFFILIATES, LICENSORS AND SERVICE PROVIDERS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND AS TO THE AVAILABILITY, PERFORMANCE, FUNCTIONALITY, OPERATIONS, OR SECURITY OF THE APP  AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE WITH RESPECT TO THE APP, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, CURRENTNESS, NON-INFRINGEMENT, ACCURACY, AND COMPLETENENESS; (B) ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE; AND (C) UNINTERRUPTION, ERROR-FREE, DEFECT-FREE, SECURITY, VIRUS FREE, OR FREE OF MALWARE OR OTHER HARMFUL OR MALICIOUS CODE OR COMPONENTS. KALOGON PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, INTEGRATE, INTERFACE OR OTHERWISE WORK WITH ANY THIRD-PARTY APPLICATIONS, SOFTWARE, SYSTEMS OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KALOGON OR BY ANY OF KALOGON’S AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on applicable statutory rights of a consumer, so some of above stated the exclusions and/or limitations may not apply to You.

1. Limitation of Liability. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KALOGON, OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS, INCLUDING OUR AND ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS AND SERVICE PROVIDERS, HAVE ANY LIABILITY OF ANY KIND ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE APP FOR (1) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, BUSINESS INTERRUPTION OR DELAY, LOSS OF GOODWILL OR REPUTATION, TECHNOLOGY OR SYSTEMS FAILURE OR MALFUNCTION, OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, ENHANCED, SPECIAL OR PUNITIVE DAMAGES; OR (2) BE LIABLE FOR DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE LESSER OF (A) THE AMOUNT ACTUALLY PAID BY YOU (IF ANY) FOR THE APP DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO DATE THE CAUSE OF ACTION(S) OR CLAIM(S) IS/ARE BROUGHT OR (B) EXCEED THE AMOUNT OF FIVE HUNDRED UNITED STATES DOLLARS ($500.00), WHICH SHALL BE YOUR SOLE AND CUMULATIVE REMEDY AND KALOGON’S SOLE AND CUMULATIVE LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES AND/OR LOSSES ARISE OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY AND REGARDLESS OF WHETHER KALOGON WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR LOSSES AND/OR SUCH DAMAGES AND/OR LOSSES WERE REASONABLY FORESEEABLE. Some jurisdictions do not allow certain limitations of liability, so some of the above limitations may not apply to You. 

1. Limitation of Time to File Claims.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

1. Export Control and Sanctions Laws. 

The App may be subject to United States and other countries’ export control and sanctions laws and regulations. You agree to comply with, and not cause Kalogon to violate, any export control or sanctions laws and regulations that apply to Your downloading, accessing and/or using the App including, but not limited to, compliance with the United States Treasury Department, Office of Foreign Assets Control, Specially Designated Nationals List and the United States Department of Commerce Denied Persons List or Denied Entity List. You may not use or otherwise export or re-export the App except as authorized by United State law and the law of the jurisdiction in which You reside. By using the App, You further represent and warrant that You are not located in any restricted country or on any such denied list.

 

1. Assignment.

You are not permitted to assign this EULA or any of Your rights or obligations under this EULA to any person or entity without the prior written consent of an authorized representative of Kalogon. Kalogon may assign this EULA and/or delegate its duties under this EULA, in each case in part or in whole, and all related rights, licenses, benefits, and obligations, without restriction, including the right to sublicense any rights and licenses granted to Kalogon under this EULA, at any time to the fullest extent permitted under and in a manner consistent with applicable law. Any assignment You make or attempt to make in violation of this provision shall be null and void. 

1. Severability.

If any provision or any parts of a provision in this EULA is or are, as applicable, unlawful, void, or for any reason unenforceable, then that provision or parts of that provision, as applicable, shall be deemed severable from the terms of this EULA, shall not affect the validity and enforceability of any remaining provisions (or parts of those provisions) or this EULA.  In any such case(s), such provision(s) or parts of that or those provisions, as applicable, will be amended to achieve as closely as possible the effect of the original term(s) of the subject provision(s) or part(s) of such provision(s), as applicable, and all other provisions of this EULA and this EULA will remain in full force and effect. 

1. Third-Party Beneficiaries.

Google LLC is, along with its subsidiaries, a third-party beneficiary of this EULA and will have the right (and is deemed to have accepted the right) to enforce this EULA as a third-party beneficiary against You.  Other than Google LLC, this EULA is for the sole benefit of You and Kalogon and Your and Kalogon’s respective permitted successors and permitted assigns, and nothing in this EULA, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of kind. 

1. Waiver.

Kalogon’s failure or delay to exercise any of its rights under this EULA will not operate as a waiver of such right, nor will Kalogon’s single or partial exercise of any right under this EULA preclude Kalogon from furthering exercising that right or any other right Kalogon has under this EULA. 

1. Force Majeure. 

Kalogon will not be liable to You for any failure or delay in performing its obligations to You under this EULA where the failure or delay is due to any event beyond the reasonable control of Kalogon and results in a disruption, interruption, or otherwise adversely impacts the availability, performance, functionality, operation or security of the App, including, without limitation, events arising from: natural disasters such as earthquakes, fires, storms, hurricanes, floods or other acts of nature; fires, explosions or other accidents of physical facilities housing data centers or other physical infrastructures; wars, acts of terrorism, invasions, riots or civil unrest; labor strikes, stoppages, slowdowns or other industrial disturbances; pandemics, epidemics, disease outbreaks, virus outbreaks or other public health crises, or government-ordered quarantines; outages or interruption in electricity, internet, or telecommunication services; cyberattacks, denial-of-service of attacks or other malicious incidents targeting Kalogon or any of its licensor’s or third-party vendor’s software or technologies or infrastructure; disruptions or catastrophic failure of Kalogon’s or any of its licensor’s or third-party vendor’s cloud hosting or other technology systems; any government action or orders limiting or impairing access to internet services; or, changes in laws or regulations, or the passage of law, regulation or other action taken by any government or public authority including imposing an embargo or restricting or limiting access to the supply of third-party services or products.  

1. Term and Termination. 

The term of this EULA will begin when You download the App and will remain in effect until terminated by You or Kalogon. You may terminate this EULA by deleting Your account from the App and deleting the App from Your mobile device(s). Kalogon, in Our sole discretion, may terminate this EULA and Your access to and use of the App at any time without notice if the applicable app store stops to support in any way the availability, performance, operation, functionality, or security of the App or due to a passage of or changes in law of any jurisdiction that makes the availability of the App prohibited. This EULA will immediately and automatically terminate without any notice to You if You violate any of terms of this EULA. 

Upon termination, all rights granted to You under this EULA will automatically terminate and (a) You must delete Your user account from the App, and (b) delete the App from Your mobile device(s). 

When you delete Your App account, Kalogon will retain Your personal information and data (and that of the individual who is under Your care or supervision if applicable) in a secured database owned or controlled by Kalogon for such period of times as is required by applicable record retention and consumer requests laws. Upon expiration of such period of times, Kalogon will securely delete Your personal information (and that of the individual who is under Your care or supervision, if applicable) and only retain a secure archive of its audit logs that may contain Your personal information and data to comply with any record retention applicable law or other legal obligations applicable to Us, and, as to HIPAA “protected health information”, for a period of six (6) years after the date of creation. Upon the expiration of each applicable time period, Kalogon will securely and permanently delete its audit logs and not retain any copies in whole or in part. 

Any termination of this EULA, whether by You or Kalogon and regardless of the reason, will not limit or terminate any of Kalogon’s rights or remedies at law, in equity or otherwise, and will survive the termination of this EULA to the maximum extent permitted by law. 

1. Governing Law and Venue. 

Except to the extent expressly stated in the below following paragraph, You and Kalogon expressly agree that this EULA shall be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule. You and Kalogon irrevocably accept and submit to the personal jurisdiction and venue of the courts located within Brevard County in the State of Florida to resolve any dispute or claim arising from or relating to this EULA. 

If you are a citizen of a European Union country, the governing law and forum shall be the laws and courts of your habitual residence.  

The United Nations Conventions on Contracts for International Sales of Goods and the United States Uniform Computer Information Transactions Act shall not apply to this EULA.

1. Changes to Terms.

We have the right, at any time and without prior written notice, to add to or modify the terms of this EULA. If changes to the terms of EULA are material, We will notify You either through the App and/or by email to the email address You provided We have on file. By continuing to use the App after any such changes are made, You are acknowledging that You have reviewed, understand, and expressly agree to the updated EULA.  

1. English Language.  

If We provide You with a translation of the English version of this EULA and there is any conflict between the translated version and the English language version, the English version will control. Please note that any and all written communications, including notices, You deliver to Us relating to or concerning this EULA must be in the English language.

1. Entire Agreement; Binding Effect; Headings. 

This EULA constitutes the entire agreement between You and Kalogon with respect to the App and the subject matter of this EULA and supersedes all previous and contemporaneous understandings, agreements, representations and warranties, both written or oral, with respect to the App and the subject matter of this EULA and Our Privacy Policy.  As a user of the App, You agree to first contact Us prior to seeking any government or legal recourse for any dispute or other issues You believe You have with respect to Your use of the App.  This EULA shall inure to the benefit of and be binding on You and/or the individual under Your care or supervision on the one hand and Kalogon on the other hand and each of Your and Our respective permitted successors, permitted assigns, administrators, trustees, executors, and legal representatives.  The headings used in this EULA are inserted for convenience of reference only and are in no way and shall not in any way be used to interpret, define, or limit the scope, extent, or intent of this EULA or any of its provisions. 

1. Notices. 

Kalogon may deliver any required or permitted notice under this EULA to You by sending You an email to the email address You provided to Us or directly within the App; in each case, such notice will be deemed to have been validly delivered to You on the same day it was sent to You.  

For notices You are required or permitted to provide to Kalogon under this EULA, delivery must be made by a nationally or globally recognized overnight courier, by airmail, first class mail, or certified or registered mail (in each case, postage pre-paid), and such delivery shall be deemed to have been made on the business day of Kalogon’s actual receipt.  Delivery by mail must be addressed to:

Kalogon, Inc.

Attn: Tim Balz

2412 Irwin Street

Melbourne, FL 32901 

USA

Alternatively, You may deliver a notice to Kalogon by email to contact@kalogon.com (receipt confirmation of successful delivery required, recipient read receipt confirmation required).  Notice by email will be deemed given to Kalogon on the same business day it was sent only if it was sent during Kalogon’s normal business hours; otherwise, delivery will be deemed given to Kalogon on the next business day of Kalogon’s normal business hours. For purposes of this section, “business day” means every day except Saturdays, Sundays, United States federal and state holidays, or a day on which United States banking institutions are authorized by law or executive action to close.

1. Questions; Contact Us. 

For questions relating to this EULA or the App, You may contact Our customer support by calling +1 (312) 465-4504 during Kalogon’s normal business hours Monday-Friday, 9:00 a.m. through 5:00 p.m. Eastern Standard Time (EST).  For international users, please note that carrier rates and charges that may apply to international calls will be at Your sole cost.  Alternatively, You may contact Us by sending an email to: contact@kalogon.com.  

Keep in mind that email communications may not be secure, so please do not include Your account login credentials or any health or other personal sensitive information about You or, to the extent applicable the individual under Your care or supervision.  KALOGON WILL NEVER ASK YOU FOR YOUR LOGIN USERNAME OR PASSWORD TO THE APP BY EMAIL, IN A TEXT, OR OVER THE PHONE AND YOU SHOULD NEVER SHARE YOUR USERNAME OR PASSWORD IF REQUESTED BY ANYONE IN AN EMAIL, TEXT, OR OVER THE PHONE.  KALOGON DOES NOT AUTHORIZE ANY OF ITS REPRESENTATIVES TO REQUEST OR REQUIRE YOU TO DISCLOSE YOUR ACCOUNT LOGIN CREDENTIALS TO THE APP.  Depending on the nature of Your request, Our customer support may ask You provide Your Device ID to be able to assist You.