kiio FLEX license agreement

Software End User License Agreement

Kiio Inc., kiio FLEX End User License Agreement

Please carefully read this End User License Agreement (the “Agreement”), which governs your use of the Software. By clicking the “I accept the terms in the License Agreement,” you are accepting the terms and conditions of this Agreement by and between you and Kiio Inc. (“Kiio”), and you acknowledge that this Agreement is enforceable like any written negotiated agreement signed by you. Below is the full license agreement.


Kiio Inc., kiio FLEX End User License Agreement

Please carefully read this End User License Agreement (the “Agreement”), which governs your use of the Software. By clicking the “I accept the terms in the License Agreement,” you are accepting the terms and conditions of this Agreement by and between you and Kiio Inc. (“Kiio”), and you acknowledge that this Agreement is enforceable like any written negotiated agreement signed by you.

  1. General Terms. Kiio is proud to provide you with license-based access to certain of its Software through download, stream or otherwise provided to your computer and/or mobile system (the “Service” or “Services”). You may access the Software and or Service using your Account and obtaining a License (thereby becoming a “Licensee”). If you register for an Account and obtain authorized access to the Software and or Service, you will receive a license to use the Software and or Service (“License”).
  2. Software Defined. The “Software” means: (a) all of the contents of the downloadable and non-downloadable files, disk(s), CD-ROM(s) and other media including animated and/or video content with which this Agreement is provided; (b) all related documentation, manuals, and instructions; (c) all Updates (as the term is defined below in Software Modification, Storage and Access); (d) purchase of licenses and creation of accounts; (e) the Kiio website (“Website”) and applications; and (f) your use of all of the above.
  3. Ownership.
    1. The content in the Software, Website and Service, except User Content (as defined below), including without limitation, the trademarks, copyrights, text, software, graphics, photos, music, videos, and the like (“Content”), is owned by or licensed to Kiio and is subject to trademark, copyright and other intellectual property laws of the United States and foreign countries. You acknowledge that Kiio owns all title, rights and intellectual property in the Content, except Third Party Software (as defined below). Content in the Software, Website and Service may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited in connection with the Software, Website and Service whatsoever without the prior written consent of Kiio.
    2. You may be able to post or upload user-generated content, such as data, routines, exercises, graphics, comments, photos, presentations, articles, profiles (including your name, image, and likeness), messages, notes, text, information, music and videos (“User Content”) to and/or during use of the Software, Website and/or Service. You will remain the owner of the User Content. By posting User Content, you grant Kiio an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, edit, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with Kiio, the Software, Website and/or Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. For example and without limiting the foregoing, by posting routines to any portion of the Software, you grant Kiio the right to use, copy, edit, highlight, feature, distribute, and display those routines or any portion thereof in the Software or Service and in promotions thereof in any manner and for any purpose. By posting User Content, you represent and warrant that: (i) you have the right to post the User Content, (ii) that no third party rights, laws or regulations, e.g. COPPA, will be violated by such posting, (iii) that you have the right to grant Kiio the rights granted herein, (iv) that no User Content contains any personal information regarding anyone under the age of 18, (v) the User Content is not harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, or otherwise objectionable or offensive, and (vi) the User Content does not make the security of your License or the Software, Website and/or Service vulnerable in any way. You acknowledge that Kiio and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any User Content or material that is available through the Software, Website and/or Service. You also hereby grant each other Licensee and/or user an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, edit, translate, excerpt (in whole or in part) any User Content submitted by you, during use of the Software, Website and/or Service.
  4. Account Eligibility.
    1. To obtain Licenses to or use the Software and/or Service offered under this Agreement, you must register for a user account (an “Account”) with Kiio. No sharing of Accounts or sharing of Licenses is permitted, except for a parent or legal guardian may register an Account for the purpose of supervising use with a minor child as authorized below in Subsection 2.
      1. Accounts are available only to adult individuals 18 years of age or older. If you are less than 18 years of age and wish to use the Software and/or Service, your parent or legal guardian must complete the registration process, open an Account in their name, without providing personal information of anyone less than 18 years of age, and accept full responsibility for all obligations under this Agreement.
      2. By accepting the terms of this Agreement, you represent that you are an adult 18 years of age or older. You, as a registered user of an Account (“Account Holder”), may permit your minor child to use the Account under your supervision and with your authorization, however, you agree that you are liable for all activities conducted in connection with the your Account, and that you will not provide personal information of anyone less than 18 years of age unless that person is your child or of which you are legal guardian.
      3. You should keep your password, credential information and other access information (“Account Information”) in a safe place. If you believe that your Account Information has been lost, stolen, or is being abused, please contact Kiio at info@kiio.com and new Account Information may be issued if appropriate as determined at the sole discretion of Kiio.
    2. Kiio may suspend, terminate or modify your Account or delete your Account at any time for any reason, with or without notice to you. Most Account or License suspensions, terminations, and/or deletions are the result of violations of this Agreement or are a result of an abandoned Account.
    3. When creating an account you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (your “Registration Data”); (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; (c) immediately notify Kiio of any unauthorized use of your Account Information, Account or any other breach of security; and (d) ensure that you exit from your Account at the end of each session. Kiio has the right to suspend or terminate your Account and refuse your use of the Software or Service for any reason, including for violations of this or any other agreement with Kiio.
  5. License.
    1. Subject to the terms and conditions of this Agreement, Kiio grants you a non-exclusive, non-transferrable, non-sublicensable, non-assignable, revocable limited license to use the Software in accordance with the terms of this Agreement. Each user of the Software or Services must have his or her own Account and his or her own License; one License per Account and one Account per person. Thus, within an organization such as a hospital, clinic, or other business, each user of the Software must have his or her own License and his or her own Account. For each License, you are allowed to install, use, access, and run the Software on all computers or computing devices that you use by accessing such Software through your Account. 5.2. You may not: (i) license, distribute, sublicense or otherwise commercially exploit the Software or Service except as authorized by this Agreement; (ii) copy, modify, or translate the Software into any other computer, mobile device, or human language; (iii) disassemble, reverse engineer or decompile the Software or otherwise attempt to discover any portion of the source code related to the Software; (iv) create any copies or derivative works regarding the Software or Service; (v) use maillist, listserv, an auto-repsonder or spam on the Software or any processes that run or are activated while you are not logged in to your Account, or that otherwise interfere with the proper working of the Software or Service; (vi) crawl, scrape, or spider any page or portion of the Software, Service or Website; or (vii) otherwise use the Software or the Service except as expressly provided in this Agreement. Notwithstanding these restrictions, you are permitted to create new routines and exercises, and to modify existing routines and exercises in the Software.
    2. You understand and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Software or Service, including without limitation, the Account registered to you without Kiio’s express written consent.
    3. You understand and agree that Kiio has the right to audit your use of the Software from time to time to ensure your adherence to the License requirements and the terms of this Agreement.
  6. Third Party Software Attributions, Copyrights, Licenses and Disclosure.
    Certain items of the Software may be owned by third parties (“Third-Party Software”) and be subject to third party licenses, including “open source” licenses, in addition to being subject to this Agreement. By entering into this Agreement, you additionally understand and agree to be bound by and subject to the license for each item of Third-Party Software under the terms of the license that accompanies such Third-Party Software. Nothing in this Agreement grants you rights that supersede the terms and conditions of any applicable license for the Third-Party Software. If required by any license for a particular Third-Party Software, Kiio makes such Third-Party Software, and Kiio’s modifications to that Third-Party Software available by request to Kiio at info@kiio.com or by contacting us at 608-467-4607. A listing of Third-Party Software distributed with the kiio FLEX is made available to customers in the product installation directory C:\Program Files (x86)\Kiio\kiio FLEX and also obtainable at Third party software.

    KIIO MAKES NO REPRESENTATION, WARRANTY OR OTHER COMMITMENT OF ANY KIND REGARDING SUCH THIRD-PARTY SOFTWARE, ITS CONTINUED MAINTENANCE, OR SUPPORT. KIIO SHALL, TO THE MAXIMUM EXTENT PERMITTED BY LAW, HAVE NO LIABILITY ASSOCIATED WITH ITS USE OF THIRD-PARTY SOFTWARE AS LISTED UNDER THE SPECIFIC TERMS IN EACH THIRD-PARTY SOFTWARE LICENSE AGREEMENT.

  7. Access and Use of Software.
    1. Kiio will provide reasonable access to User Content and data collected from you or retained in connection with your use of the Software, Service or Website during the term of this Agreement. If you uninstall the Software or if your License to use the Software or Account is terminated for any reason, you acknowledge that Kiio has no obligation to provide you with access to User Content or data collected or retained in connection with your use of the Software, Service or Website.
    2. You are solely responsible for maintaining the confidentiality and security of the Account Information used by you to access the Software and/or Services and for preventing unauthorized access to or use of the information, files or data that you store or use in or with the Software. Kiio reserves the right to deny you access to the Software or Services (or any part thereof) for any reason, including if Kiio reasonably believes that any loss, theft, or unauthorized use of your License or Account, the Software or Services has occurred.
    3. To the extent permitted by applicable law, you shall be solely responsible and liable for your use of the Software and Services and for all activities that occur under your Account Information, Account and License.
  8. Fees.In consideration for your License of the Software and Services, including any related support and maintenance services, you will pay to Kiio any license fees and transaction fees identified when you obtain the Software or Service or in your software order. License and transaction fees may be imposed or adjusted by Kiio in its sole discretion. Invoices will detail any charges for software upgrades and the fees related thereto will be payable by you unless you notify Kiio in writing within fourteen (14) business days of your receipt of an invoice of your desire to opt-out of any such upgrade and specifically identify the upgrade in such writing. Invoices are payable upon receipt. Invoices not paid in thirty (30) days from the date of invoice are subject to interest charges stated on the invoice. If you fail to pay any fees in a timely manner, Kiio may (reserving other legal remedies and rights) terminate this Agreement without further notice.
  9. Software Modification, Storage and Access. Kiio has the right to apply patches, updates and modifications to the Software (each an “Update”) at any time for any reason, including to update and maintain it and to address errors or interruptions; and functionality may change after an Update. Kiio has the right, in its sole discretion, to impose limits on certain features or restrict your access to parts or all of the Software or Service without notice or liability, temporarily or permanently, including but not limited to the amount of storage space devoted to your use of the Software. Kiio reserves the right to make any such Updates effective immediately to maintain security, to comply with any laws or regulations, or for any other reason it deems appropriate. Your continued use of the Software will constitute acceptance of and agreement to such Updates. Maintenance upon the Software may be performed from time to time resulting in interrupted service, delays, or errors in the Software or Service. You acknowledge and agree that Updates may be incompatible with previous software versions, could include substantial changes to the system, and that data collected or created using one version of the Software may not be available in subsequent versions. Kiio makes no representation that the Software, Service or Updates will work on a particular device. You are responsible for having necessary Internet connections, equipment, software and services for you to effectively access the Website, download and use the Software and Services.
  10. Collection and Use of Information.
    1. You acknowledge and consent that Kiio may, directly or indirectly through the services of others, collect and store information about you, about your use of the Software, Services and Website, and about the equipment on which the same is installed, accessed or used. Such information may include personally identifiable information about you such as your name, contact information, age, and gender, as well as health information such as health issues, exercise habits, and data collected from use of the Software, Services and Website. You agree that Kiio may use such information for any purpose related to any use of the Software, Services and Website, by you, including but not limited to: (i) improving the performance of the Software, Services and Website, or developing Updates, (ii) verifying compliance with terms of this Agreement and (iii) enforcing Kiio’s rights, including all intellectual property rights in the Software, Services and Website. You also agree that Kiio may use and may provide to third parties aggregated, de-identified health information collected through your use of the Software, Services and Website.
    2. You agree that Kiio may send you messages, alerts, and other communications through the Website, Software and Service, including through email, text message and other similar means in accordance with the preferences you set, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.
    3. You acknowledge and consent that Kiio may from time to time identify you and certain of its other customers or licensees as being users or Licensees of the Software or Services. For example, Kiio may be asked by potential customers about the types of users or identity of users of the Software or Services, and you consent that Kiio may respond to this type of inquiry to identify certain exemplary hospitals, clinics, other organizations or Licensees that use the Software or Services.
  11. Third Party Intellectual Property. Kiio respects the intellectual property rights of others. Kiio will respond promptly to remove material that infringes another person’s copyright or other intellectual property right. When reporting infringing material to Kiio (“DMCA Notice”) please provide:

    A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

    Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Kiio to locate the material.

    Information reasonably sufficient to permit Kiio to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

    A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

    A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512(c)(2)), our designated agent to receive notices and counter notices of claimed infringement is:

    Copyright Agent
    Kiio Inc.
    2920 Marketplace Drive, Suite 203
    Madison, WI 53719
    copyright@kiio.com

    Kiio reserves the right to remove any infringing material that it believes in good faith to be copyrighted material that is used without authorization by any licensee or other user of the Software, Service or Website. Kiio also reserves the right to suspend or delete the Account of any repeat offender.

  12. Business Associate. If required by law, you agree that you will enter into Kiio’s current Business Associate Agreement form in accordance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the applicable HIPAA rules.
  13. No Warranties. YOU ACKNOWLEDGE THAT THE SOFTWARE, SERVICE AND WEBSITE IS PROVIDED “AS IS,” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY KIIO, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED.
  14. No Consequential Damages. UNDER NO CIRCUMSTANCES WILL KIIO BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF THIRD PARTIES (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SERVICE, THE WEBSITE, SERVICE AND THE INFORMATION RECEIVED THROUGH IT. FURTHER, KIIO MAKES NO REPRESENTATIONS WHATSOEVER ABOUT OTHER WEBSITES WHICH YOU MAY ACCESS THROUGH ITS WEBSITE OR THE CONTENT, SERVICES OR PRODUCTS CONTAINED THEREIN OR OBTAINED THERE THROUGH. KIIO FURTHER DOES NOT WARRANT THE QUALITY, VALIDITY, ACCURACY OR COMPLETENESS OF THE MATERIALS OR THAT THE FUNCTIONS CONTAINED ON THE WEBSITE, SERVICE AND/OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS OR INACCURACIES WILL BE CORRECTED. KIIO MAY MAKE CHANGES TO THE MATERIALS OR SERVICES, OR TO THE PRODUCTS, SERVICES, SPECIFICATIONS OR PRICES DESCRIBED IN THEM, AT ANY TIME WITHOUT NOTICE. THE MATERIALS MAY BE OUT OF DATE, AND KIIO MAKES NO COMMITMENT TO UPDATE THE MATERIALS AT ITS WEBSITE, SERVICE AND/OR SOFTWARE OR TO MAKE ANY NOTIFICATION OF CHANGES. INFORMATION PUBLISHED AT THE WEBSITE OR IN CONNECTION WITH THE SERVICE OR SOFTWARE MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE. YOU HEREBY RELEASE KIIO FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO A DISPUTE BETWEEN YOU AND ANOTHER ACCOUNT HOLDER.

    CALIFORNIA RESIDENTS HEREBY SHALL AND DO WAIVE CALIFORNIA CIVIL CODE 1542, WHICH PROVIDES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

  15. Limitation of Liability. KIIO AND ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AND ITS AFFILIATES ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE, ITS WEBSITE, AND/OR SOFTWARE OR ANY INFORMATION RECEIVED FROM THE SAME, INCLUDING THE CONTENT OR ANY INFORMATION CONTAINED WITHIN OR THROUGH THE WEBSITE, SERVICE AND/OR SOFTWARE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE, WEBSITE AND SOFTWARE IS TO TERMINATE YOUR ACCOUNT AND/OR STOP USING THE WEBSITE, SERVICE, SOFTWARE, AND THE INFORMATION OBTAINED THEREIN. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL KIIO’S LIABILITY TO LICENSEE EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE, SERVICES OR FOR THE USE OF THE SOFTWARE WITHIN THE LAST TWELVE MONTHS.
  16. Indemnification. You agree to indemnify, defend, and hold harmless Kiio, its subsidiaries, affiliates, officers, directors, employees and agents from and against all allegations, claims, demands, losses, expenses, damages, costs, including reasonable attorneys’ fees, arising in connection with your or any of your patients, customers or clients’: (i) use of the Software, Service and Website, and (ii) violation of this Agreement or any rights of another person or entity.
  17. Termination. Either party (Kiio or you) may terminate this Agreement and your License to use the Software and Service at any time, for any reason, with or without cause. Upon termination, all rights granted to you hereunder will cease, and you will promptly purge the Software from your computers and mobile devices and immediately cease using such Software and Service. All provisions of this Agreement which by their nature extend beyond termination will survive termination, including any payment obligations for amounts still owed by you to Kiio at the time of termination. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all purchases of Licenses and other payments made in connection with the Software, Service and Licenses. Kiio may terminate this Agreement with or without notice by deactivating the Account. By way of example only, Kiio may deactivate and/or terminate abandoned Accounts or Accounts which appear to be abandoned such as due to non-use for a period of time. A termination of this Agreement will also act to terminate your Account and License. You acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Account prior to termination of this Agreement.
  18. Amendments to Agreement. Kiio may update and amend this Agreement at its sole discretion (each an “Amendment”), and you may be asked to review and agree to a revised version. If you do not agree to the revised version of this Agreement, you will not be permitted to continue use of your License, Account, Software or Service. If at any time you become no longer able to comply with the terms of the current version of this Agreement, you must terminate this Agreement and immediately stop using any License, Software and Service. You acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Account prior to termination of this Agreement.
  19. Governing Law, Jurisdiction & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin. You hereby consent to the exclusive jurisdiction and venue of the federal and state courts of the State of Wisconsin, located in Madison, Wisconsin, for all purposes in connection with any action or proceeding which arises out of or relates to the resolution of any disputes relating to this Agreement, the relationship between Kiio and you, and the Software, Service, Website and Updates.
  20. Severability. The provisions of this Agreement are severable, and if any one or more such provisions shall be judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions of this Agreement will nevertheless be binding on and enforceable by and between Kiio and you.
  21. No Waiver. The failure of Kiio to enforce this Agreement for breach or nonperformance shall not operate as a waiver of any rights to enforce the Agreement or invoke any other remedy for subsequent breach or nonperformance.
  22. Assignment. You may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without Kiio’s prior written approval. Kiio may assign this Agreement or any of its rights or obligations to a related party or pursuant to a sale, merger, or other consolidation of Kiio. You consent in advance to any such assignment.
  23. Entire Agreement. The current version of this Agreement constitutes the complete and exclusive expression of the understandings and agreements of the parties relating to the subject matter hereof, and supersedes all prior agreements, understandings and negotiations, whether written or oral, between the parties relating to such subject matter, including, but not limited to the Privacy Policy and Terms of Use of the Website.