Koa Care 360

End User License Agreement (Global)

Koa Care 360: Terms of Use

Effective as of: 3 June 2024

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS OF USE (THESE “TERMS” OR THIS “AGREEMENT”) CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MAY APPLY TO YOU. THESE TERMS REPLACE ALL PREVIOUS KOA CARE 360 TERMS. BY ACCEPTING THESE TERMS, YOU AGREE TO RESOLVE ANY DISPUTE WITH US ARISING OUT OF OR RELATED TO KOA CARE 360 AND THESE TERMS THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE PROCEDURES AND AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION SUIT.

SUMMARY

This summary takes two minutes to read and will help you quickly understand the main points of the Agreement. It is provided for convenience only and is not legally binding. Because it does not replace the full Agreement, which explains your responsibilities and legal rights, please read the full Agreement to understand the complete picture of our Agreement.

We are Koa Health.

We provide Koa Care 360 to you to support and maintain general health and wellness. This Agreement is between you and us regardless of who has made Koa Care 360 available to you.

Koa Care 360 only supports your general health and wellness.

It is not a medical device and it does not replace the advice of a healthcare professional. You should always talk to a healthcare professional if you have any concerns about your health. Koa Care 360 is not for use in the diagnosis or the cure, mitigation, treatment, or prevention of disease or a replacement for in-person care.

You should only use Koa Care 360 for yourself.

Do not try to copy Koa Care 360, sell it to someone else, or use it to break the law.

You have access to Koa Care 360 through your Host Organisation.

If you change your Host Organization or if your Host Organization asks us, then your access to Koa Care 360 may be de-activated.

Koa Care 360 works best when it’s updated.

Sometimes, we’ll automatically update Koa Care 360 or ask you to update it. This will be to improve the App in some way (for example, to make it more secure). When this happens, older versions of Koa Care 360 might not work anymore.

Koa Care 360 only uses the data it needs.

You can read more about how we use your data in our Privacy Policy [insert link].

You can end this Agreement by deleting Koa Care 360.

We will end this Agreement if you do not follow its terms.

We provide Koa Care 360 for you ‘as is’.

We work hard to make Koa Care 360 great at supporting your health and wellbeing, but we cannot guarantee that it will be effective for you.

We are not responsible if you misuse Koa Care 360.

If you do not follow the terms of this Agreement, and that causes harm to someone else, you cannot hold us responsible.

We will solve disagreements through arbitration.

If you and Koa have a disagreement, then you and Koa agree to use arbitration to solve the dispute.

IMPORTANT NOTICE.  Koa Care 360 is not a medical device. Koa Care 360 is not intended to be used in the detection, diagnosis, prevention, monitoring, prediction, prognosis, therapy, treatment or alleviation of any condition, disease or vital physiological processes or for the transmission of time-sensitive health information. We make no promise that Koa Care 360 will provide any benefit to your mental or physical wellbeing. You should consult your doctor, clinician or appropriate healthcare professional (“doctor”) before making any decisions or doing (or not doing) anything related to your health, and your doctor’s advice must take precedence over the content of Koa Care 360. Any content found in or via Koa Care 360 is available only for your convenience and is not a substitute for, nor should it be treated or relied upon as, medical advice. Koa Care 360 is not a substitute for a health care professional’s independent clinical judgement or for in-person care and is not meant to replace medication or any other form of treatment. You should never disregard or delay seeking medical advice because of information obtained through the use of Koa Care 360.

If you are concerned about your stress level, if you are pregnant, or if you have any other concerns or questions about your health or medicines, you should always consult your doctor. If you have an existing mental health condition, you should check with your doctor before using Koa Care 360.

IMPORTANT NOTICE TO EXISTING USERS: By accepting these updated Koa Care 360 Terms of Use, you have hereby provided your express consent to transfer the agreement from Koa Health B.V. to: Koa Health Digital Solutions LLC for residents of the United States of America, and Koa Health Digital Solutions Limited for residents outside of the United States of America (each entity, “Koa Entity”). You acknowledge and agree that: (1) the relevant Koa Entity shall be substituted for Koa Health B.V. in the Koa Care 360 Terms of Use you entered previously (“Prior Terms”) and shall acquire all the rights and become obligated to perform all the duties of Koa Health B.V. that are hereby assigned and delegated to the relevant Koa Entity; (2) the Koa Entity undertakes full performance of the Prior Terms, as amended in these updated Koa Care 360 Terms of Use, and makes a separate promise to faithfully and fully so perform; and (3) Koa Health B.V. shall be hereby relieved of all obligations and liability to any party arising out of the prior Koa Care 360 Terms of Use. You may revoke your consent by stopping use of and deleting all components of the Koa Care 360 app.

Summary

1. Who we are and what this agreement does

If you are a resident of the United States of America (including any U.S. state, district, or territory) then these Terms are a binding agreement between you and Koa Health Digital Solutions LLC, a company registered in the United States of America (registered number 881595) with a registered address at 75 State Street, Boston, Massachusetts 02109 USA (“Koa”, “we”, “us”).

For all other Koa Care 360 users, these Terms are a binding agreement between you and Koa Health Digital Solutions Limited, a company registered in the United Kingdom (registered number 13298286) with a registered address at 55 Baker Street, London, United Kingdom W1U 7EU (“Koa”, “we”, “us”).

We operate the Koa Care 360 mobile application software (the "App"), Koa Care 360 website version (the “Website”) and any updates or supplements to the App and Website (collectively known as “Koa Care 360”).

Your use of Koa Care 360 is governed by these Terms. Please carefully read these documents before using Koa Care 360. By using Koa Care 360, you: (a) represent that you are 18 years  of age or older if a resident in the United States Of America or 16 years of age or older if a resident outside of the United States of America and (b) signify your consent to the Terms and our processing of your personal information pursuant to the to the Privacy Policy and the Cookies Policy.

We reserve the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. For example, we may need to change the Terms to reflect changes in law or best practices or to support additional features which we introduce. Please check the Terms, Privacy Policy and Cookie Policy from time-to-time for changes. Your continued use of Koa Care 360 following the posting of changes to these documents will mean you accept those changes. These Terms were most recently updated in June 2023.

2. Your privacy

You acknowledge that when you use Koa Care 360, Koa may use automatic means (including, for example, cookies and web beacons) to collect information about your device and your use of Koa Care 360. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using a component of Koa Care 360. We process personal information we collect as described in our Privacy Policy.

For Koa Care 360 users based in the United States of America for whom the organization instructing Koa to make Koa Care 360 available to you (“Host Organization”) is deemed a covered entity under the Health Insurance Portability and Accountability Act (“HIPAA”), you understand and agree that some information that you provide in connection with the use of Koa Care 360 may be considered “Protected Health Information,” or “PHI,” as defined under HIPAA, and will be subject to the Notice of Privacy Practices and/or other privacy policies issued by your Host Organization and the agreements between Koa and such Host Organization. You acknowledge and agree that, in the event that you discontinue your affiliation with such organization, you may still have access to Koa Care 360, and by continuing to use Koa Care 360, you expressly consent to Koa’s continued access and use of your personal information and PHI in accordance with these Terms and the Privacy Policy. You acknowledge and agree that Koa may independently collect, use, store, disclose, or otherwise process data that is not considered PHI, including information that you provide to Koa, directly or indirectly, which either: (1) does not relate to your past, present, or future physical or mental health or condition; the provision of health care to you; or the past, present, or future payment for the provision of health care to you; (2) has been voluntarily provided to Koa by you not for the purposes of the provision or receipt of health care and which will not be disclosed to the Host Organization; or (3) has been de-identified in accordance with applicable HIPAA standards. When we do so, we process such information in accordance with our Privacy Policy.

3. What is the Koa Care 360 service

Koa Care 360 service: Koa Care 360 combines clinical research and technologies to deliver self-guided mental health support that is accessible, personalized, and applicable across a range of conditions but is not under clinician supervision. Koa Care 360 is not an emergency service. If you are in crisis and feel there is an immediate risk of harming yourself, or someone else, you should seek professional help immediately.

4. How you may and may not use Koa Care 360

License: Subject to these Terms, Koa grants you a limited, revocable, non-exclusive and non-transferable license (the "License") to: (a) use Koa Care 360, including the images, text, sound, video files, programs, scripts or other material or content (“Content”), solely for your own personal, non-commercial use; and (b) download, install, and use the App solely for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") on an Approved Mobile Platform (defined below); both of the foregoing, in accordance with the accompanying documentation, which may include additional restrictions applicable in certain jurisdictions (e.g., geographical restrictions, etc.). You acknowledge and agree that Koa Care 360, including the App and its content, are provided under license, and not sold, to you. You do not acquire any ownership interest in any part of Koa Care 360, or any other rights thereto other than the permission to use Koa Care 360 in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Nothing in this License will entitle you to receive from Koa any additional services or support, including hard-copy documentation, technical support, telephone assistance, or updates to Koa Care 360.  Koa and its licensors and service providers reserve and shall retain their entire rights, titles, and interests in and to Koa Care 360, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you by these Terms.

All Content found on Koa Care 360, and all copyright, trademarks and any other intellectual property rights related to the Content are owned by us or our content providers. We do not grant any license or other authorization to any of our trademarks, logos, trade names, service marks, other copyrightable material or any other intellectual property by including it on Koa Care 360. You may use our Content only as permitted and only for lawful purposes. Any other use of Content on Koa Care 360 without our consent is strictly prohibited. We reserve the right to withdraw permissions without notice.

You may only use Koa Care 360 for your own personal, non-commercial use.

Restrictions: You may not use Koa Care 360:

  • for any purposes other than your own personal use;
  • for the detection, diagnosis, prevention, monitoring, prediction, prognosis, therapy, treatment or alleviation of any condition, disease or vital physiological processes or for the transmission of time-sensitive health information;
  • in any way that breaches any applicable local, national or international law or regulation, or in any manner inconsistent with these Terms;
  • in any way that is unlawful, fraudulent or malicious or has any unlawful, fraudulent or malicious purpose or effect;
  • for the purpose of harming or attempting to harm minors in any way;
  • to bully, insult, intimidate or humiliate any person;
  • to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
  • to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

You also agree:

  • not to rely on Koa Care 360 as a substitute for medical advice from a licensed health care professional, for in-person care, or for prescribed medication;
  • not to reproduce, duplicate, copy or re-sell any part of Koa Care 360 other than as permitted above, or to infringe our intellectual property rights or those of any third party in relation to your use of Koa Care 360;
  • not to modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of Koa Care 360;
  • not to reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of Koa Care 360 or any part thereof;
  • not to remove, alter, or obscure any copyright, trademark or other proprietary notice appearing on Koa Care 360, in the Content or related materials;
  • not to remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting Koa Care 360;
  • not to rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available Koa Care 360, or any features or functionality of Koa Care 360, to any third party for any reason, including by making Koa Care 360 available on a network where it is capable of being accessed by more than one device at any time;
  • not to access without authority, interfere with, damage or disrupt any part of Koa Care 360; any equipment or network on which Koa Care 360 is stored; any software used in the provision of Koa Care 360; or any equipment or network or software owned or used by any third party;
  • not to transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of Koa Care 360;
  • not to use Koa Care 360 in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
  • not to collect or harvest any information or data from Koa Care 360 or our systems or attempt to decipher any transmissions to or from the servers running any service.

Website:  The Website supports access from a current and generally supported version of the mainstream browsers suitable for use with healthcare data, with the publisher recommended settings for security and with automatic updates enabled.

Mobile Platform: The “Approved Mobile Platforms” are Apple Inc.’s (“Apple”) iOS and Google LLC’s (“Google”) Android platforms.  If you use Koa Care 360 on a Mobile Device running Apple iOS, then the following terms and conditions apply: (a) you acknowledge this agreement is entered into between you and Koa only, not with Apple; (b) you shall only use Koa Care 360 on your Mobile Device in compliance with these Terms and applicable third party terms, including the Usage Rules set forth in the Apple App Store Terms of Service; (c) Koa, not Apple, is solely responsible for Koa Care 360 and any Content received through Koa Care 360 or the services accessible through Koa Care 360; and (d) you acknowledge that, in the event of any third-party claim that Koa Care 360 or your possession and use of Koa Care 360 infringe that third party’s intellectual property rights, as between Koa and Apple, Koa, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

If you use Koa Care 360 on a Mobile Device running Android, then the following terms and conditions apply.  Notwithstanding anything to the contrary in these Terms, if you use Koa Care 360 on a Mobile Device running Android, you hereby acknowledge and agree that (i) Koa Care 360 relies in part on functionality provided by Google (the “Google Functionality”); (ii) any information provided by you via Koa Care 360 may be shared with Google in connection with your use of the Google Functionality; and (iii) all such information shall be handled by Google in accordance with the then-current Google Privacy Policy (currently available at http://www.google.com/policies/privacy), as may be amended by Google from time to time.

5. Indemnity

You agree to indemnify and hold harmless Koa and our officers, directors, employees, agents, affiliates, service providers and licensors and our and their successors and assigns (“Koa Parties”) from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interests, awards, penalties, fines, costs, expenses or demand of whatever kind (including but not limited to reasonable legal fees) arising out of or related to your use or misuse of Koa Care 360 or your violation of these Terms or any applicable laws, regulations or third-party rights.

6. Disclaimers

The Content on Koa Care 360 is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the Content on Koa Care 360.

Koa Care 360 may include materials provided by third parties, such as bloggers, third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in such materials, other than the Content provided by Koa, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Koa. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

KOA CARE 360 IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KOA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO KOA CARE 360, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, KOA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT KOA CARE 360 WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.  YOU ACKNOWLEDGE APPLE HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP.

7. Limitation of liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KOA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY PART OF KOA CARE 360, INCLUDING THE WEBSITE, THE APP, AND ANY CONTENT AND SERVICES, FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; AND (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ONE HUNDRED ($100) DOLLARS, ONE HUNDRED (€100) EUROS OR ONE HUNDRED (£100) POUNDS STERLING AS APPLICABLE.

YOU ACKNOWLEDGE THAT, TO THE EXTENT PERMITTED BY LAW, APPLE WILL NOT BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APP. AS BETWEEN KOA AND APPLE, BUT SUBJECT TO THE TERMS, APPLE WILL NOT BE RESPONSIBLE TO YOU FOR ANY CLAIM RELATING TO THE APP OR YOUR POSSESSION AND/OR USE OF THE APP, INCLUDING BUT NOT LIMITED TO (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.

THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF KOA, IN THE EVENT OF PERSONAL INJURY OR DEATH, OR IN RESPECT OF ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR KOA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

8. Term; Termination; Suspension

Term: This agreement is binding from when you download Koa Care 360 and will continue in effect until terminated by you or Koa as set forth in these Terms.

Termination by you: You may terminate this agreement by stopping use of and deleting all components of Koa Care 360, including the App, the Website, their Content, and any additional products and services you may have accessed or used as part of Koa Care 360, or by notifying Koa at info@koahealth.com.

Termination by Koa: Koa may terminate this agreement, in part or in whole, at any time without notice for any reason or if it ceases to support Koa Care 360, which Koa may do in its sole discretion. In addition, this agreement will terminate immediately and automatically without any notice if you violate any of the Terms. Where access to Koa Care 360 is made available to you as a dependent of an employee of the Host Organization, your use of Koa Care 360 will terminate at the same time as the employee of the Host Organization.

Termination by your Host Organization: Where access to Koa Care 360 is made available to you by Koa on the instructions of Host Organization and you discontinue your affiliation with the Host Organization, then access to Koa Care 360 may be deactivated. Where access to Koa Care 360 is made available via Host Organization’s single sign on (SSO) authentication, then access may also be deactivated where access to such SSO is withdrawn by Host Organization.

Partial Termination and Suspension: Koa may, in its sole discretion and at any time, change, update, modify, suspend or terminate one or more features that may be accessed through Koa Care 360, including, without limitation, to improve a service or its functionality; add or remove access to a service; improve ease of use; correct an error or bug; prevent or discontinue harmful or improper access to services; prevent or discontinue unauthorized use of services; comply with a platform provider or government request; comply with a statute or judicial order; or in accordance with an agreement with a Host Organization or doctor.

Effects of Termination: Upon termination: (a) all rights granted to you under these Terms will also terminate; and (b) you must cease all use of Koa Care 360 and delete all copies of its components, including the App and its Content, from your device and account. Upon termination of this agreement, all disclaimers, indemnities, restrictions, exclusions and other terms which by their nature are intended to survive termination of this agreement shall survive. Termination will not limit any of our rights or remedies at law or in equity.

9. Updates to the product and product support

From time to time, we may automatically update Koa Care 360 to correct errors or defects, improve performance, enhance or remove functionality, introduce new features, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update the App, other components of Koa Care 360, or your device and browser for various reasons. If you choose not to install such updates, update your device or browser, or if you opt out of automatic updates, you may not be able to continue using Koa Care 360.  You agree that Koa has no obligation to provide any bug fixes, patches, or other updates or to continue to provide or enable any particular features or functionality.  You further agree that all updates will be deemed part of Koa Care 360 and be subject to these Terms.

Koa is not, and you acknowledge your mobile platform provider (e.g., Apple, Google) is not, obligated to provide any support or maintenance services to you related to Koa Care 360. Any complaints related to Koa Care 360 can be addressed by sending an email to: support@koahealth.com.

10. Contacting each other

If you want to learn more about Koa Care 360, have any problems using it, think it is faulty or mis-described, or otherwise wish to contact us for any other reason, please contact us by emailing info@koahealth.com or using the contact form available on the “Contact” tab of Koa Care 360. If we have a reason to contact you, we will do so by sending an email to the email address you used to contact us or gave via the contact form.

When you access Koa Care 360 or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Website and/or the App. We will not share any of your PHI or personal details via e-mail or other unsecure communication method. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms. You understand and agree that any third party contacting you on our behalf may send communications to you in any manner, including using a pre-recorded or artificial voice or an automatic telephone dialling system, and including but not limited to, communications concerning your use of Koa Care 360.

11. General

Third-Party Beneficiary: As to your access to and use of the App,  Apple is a third-party beneficiary of this agreement and may enforce the terms of this agreement against you as a third-party beneficiary, but only within the capacity of the provider of a mobile platform.  Subject to the rights of Apple to enforce this agreement as a third-party beneficiary, a person who is not a party to this agreement has no right under any applicable law to enforce any term of this agreement. Notwithstanding that the terms of this agreement applicable to the App may be or become enforceable by Apple, the terms of this agreement may be varied, amended or modified or this agreement may be suspended, cancelled or terminated by agreement in writing signed by or on behalf of Koa or this agreement may be rescinded (in each case), without the consent of Apple.

Unless expressly provided in the Terms, no term of the Terms is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to them.

Export Regulation: For users of the App based in the United States of America, you agree to comply with all United States and all other applicable laws, rules, and regulations relating to the export, re-export, or transhipment of Koa Care 360.

US Government Rights: Koa Care 360 is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any US contractor therefor, you receive only those rights with respect to Koa Care 360 as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

Severability: Each of the provisions and paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining provisions and/or paragraphs will remain in full force and effect.

Assignment: You may not assign any of your rights or delegate any of your obligations hereunder without the prior written consent of Koa. Koa may assign its rights or delegate its obligations, in whole or in part, without your consent, to (a) one or more of its affiliates, or (b) an entity that acquires all or substantially all the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section shall be null and void.  This Agreement is binding upon the parties and inures to the benefit of the parties and their respective successors and permitted assigns.

No Waiver: Even if we delay in enforcing this agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking this agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

Entire Agreement: This agreement constitutes the entire agreement between you and Koa with respect to Koa Care 360 and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to Koa Care 360.

12. Dispute resolution & governing law

Governing law; use within the US:  If you are a resident of the United States of America (including any U.S. state, district, or territory), then to the full extent permitted by law, this agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, excluding (1) its conflict of law principles; (2) the United Nations Convention on Contracts for the International Sale of Goods; (3) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (4) the Protocol amending the 1974 Convention, done at Vienna, April 11, 1980.

Governing law; use outside the US: If you are a resident of a jurisdiction outside the United States of America, then to the full extent permitted by law, this agreement shall be governed by and construed in accordance with the laws of England and Wales.

Language: To the full extent permitted by law, the parties declare that they have required that this agreement and all documents related hereto, either present or future, be drawn up in the English language only, and all correspondence and communications between you and Koa under this agreement must be in the English language.

Arbitration: EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATING TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND KOA PARTIES, WHETHER THE DISPUTE IS BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED IN FINAL, BINDING, INDIVIDUAL ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN COURT BY A JUDGE OR A JURY. YOU AGREE THAT KOA PARTIES AND YOU EACH WAIVE THE RIGHT TO TRIAL BY A JURY AND THAT THE FEDERAL ARBITRATION ACT ("FAA") AND FEDERAL ARBITRATION LAW, NOTWITHSTANDING THE “GOVERNING LAW” PROVISION ABOVE, GOVERNS THE ENFORCEABILITY OF THIS DISPUTE RESOLUTION PROVISION.  YOU ALSO AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, AND MASS ACTIONS ARE NOT PERMITTED, AND YOU AGREE TO GIVE UP THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION.

FOR ANY AND ALL DISPUTES OR CLAIMS YOU HAVE, YOU MUST FIRST GIVE KOA PARTIES AN OPPORTUNITY TO RESOLVE YOUR CLAIM BY SENDING AN INDIVIDUAL, WRITTEN DESCRIPTION OF YOUR CLAIM THAT DESCRIBES IN DETAIL THE INDIVIDUAL DAMAGES THAT YOU CLAIM TO HAVE SUFFERED TO KOA’S REGISTERED AGENT AT THIS ADDRESS:

For disputes arising in the United States of America:

Koa Health Digital Services LLC

75 State Street

Boston, MA 02109

United States of America

For disputes arising outside of the United States of America;

Koa Health Digital Solutions Limited

55 Baker Street,

London,

W1U 7EU,

United Kingdom

You and Koa Parties each agree to negotiate your claim in good faith. Each party agrees that it may not commence any arbitration or court proceeding unless you and Koa Parties are unable to resolve the claim within 60 days after receipt of the demand for arbitration and the parties have made a good faith effort to resolve their claims directly during that time. If you or Koa Parties are unable to resolve the claim within 60 days despite those good faith efforts, then either you or Koa Parties may start an arbitration or small claims court proceeding. You and Koa Parties agree that any dispute as to whether these conditions precedent have been satisfied will be decided in court and not by the arbitrator. Either you or Koa Parties may elect to have an arbitration proceeding initiated by the other party adjudicated in small claims court by giving written notice of that election to the other party.

For disputes arising in the United States of America, arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures, including the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness, (the “JAMS Rules”).  The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267.  If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator but will not decide arbitrability or any other aspect of the parties’ dispute (except as outlined above or if either party elects to proceed in small claims court). We will pay or reimburse arbitration filing, administration, and arbitrator fees. Notwithstanding the foregoing, if any claim asserted in an arbitration demand is deemed to be frivolous, the defending party shall be entitled to recover its attorneys’ fees and any filing, administration, and arbitrator fees incurred. The arbitrator may award any individual relief a court of law could, including temporary, interim, or permanent injunctive relief on an individual basis.

If a court or arbitrator finds in any action between you and Koa Parties that any part of this dispute resolution provision is unenforceable with respect to any claim, then the arbitration agreement and class action waiver will not apply to that claim, but they will still apply to any and all other claims that you or we may assert in that or any other action. If any provision of this dispute resolution provision is found unenforceable, the other parts of it shall continue to apply. You reserve your ability to bring claims in small claims court to the extent of that court’s jurisdiction.

For disputes arising outside of the United States of America that do not qualify for the small claims court, the dispute may, at either party’s request, be referred to arbitration in accordance with the UNCITRAL Arbitration Rules under the Centre of Dispute Resolution (“CEDR”). The arbitration shall be conducted by a single arbitrator appointed by the parties or, if the parties are unable to agree the identity of the arbitrator within 14 days after the date of the request that the dispute be resolved by arbitration, or if the person appointed is unable or unwilling to act, the arbitrator shall be appointed by CEDR. To initiate the arbitration, a party must serve notice in writing (“ADR Notice”) to the other party to the dispute, requesting arbitration. The arbitration shall be conducted in English in London.