These Terms and Conditions (the “Agreement”) are a legal agreement by and between Kinsa Inc., (“Kinsa”) having a business address at 535 Mission, Floor 18, San Francisco, CA 94105, and the entity purchasing the goods and services in the applicable ordering document (“Organization”). This Agreement governs the purchase and use of all goods and services purchased via the ordering document referencing this Agreement (“Order”).

Kinsa Product Scope

  • Overview
    This Agreement between Kinsa and Organization is made pursuant to and incorporates by reference the terms and conditions of the Order and the Kinsa General Terms & Conditions below. This Agreement shall constitute a binding agreement between the parties.
  • Purpose
    The Kinsa FLUencyTM School Health Program (“Program”) is a real-time illness response system. This system combines distribution of Kinsa smart thermometers (“Thermometers”) with a distributed software solution to enable early illness outbreak detection and early response measures within a school community. The system is designed to help organizations maintain a healthy environment by improving the community’s knowledge of, and response to, spreading illness.
  • Privacy Principles
    Kinsa does not sell personal health information and will only share personally identifiable information to third parties solely as necessary to provide End Users with Kinsa services.  Kinsa only shares real-time aggregated, anonymous illness trends to educational institutions or public health entities. Kinsa is compliant with all applicable medical privacy regulations

1. Kinsa FLUencyTM School Health Program

Through the Program under this Agreement, as set forth in the applicable Order, Kinsa will provide Organization with:

  • Thermometers for supported Organization participants (each a “Participant”) who order a Thermometer. Participants can use the thermometer and free Kinsa mobile app (“App”) for all members of their household by creating a profile for each household member (each an “End User”). The Thermometer is a bluetooth-enabled smart thermometer. The Thermometer seamlessly connects to the free Kinsa mobile app (“App”), allowing End Users to join a school group and providing End Users with personalized guidance based on age, fever and symptoms.
  • App functionality which provides End Users with the ability to evaluate illness symptoms and status, and provides immediate guidance on what to do next when End User is ill.
  • Aggregated, anonymous illness data from End Users who opt-in to joining their Organization group to Organization available via a credentialed, private web portal (“Portal”). The Portal provides designated users with interactive visualizations and data tables. The Portal organizes certain health information in one place. Organization gains visibility into illness levels which serve as an early warning system for where illness may be spreading. Portal tools include real-time aggregate illness reporting, broken down by school and grade level. As per Kinsa’s Privacy Policy, data will only show in the Portal if the number of End Users who have elected to share such data meets a minimum threshold to maintain privacy for the individual End User. Upon expiration or termination of this Agreement, Kinsa will immediately stop providing Organization access to the Portal.

Upon any expiration or termination of this Agreement, the End User will be permitted to continue its use of the Thermometer and Kinsa App (absent Organization specific functionality) in accordance with the license agreement between the End User and Kinsa (“EULA” available at: https://www.kinsahealth.co/terms-of-service/).

2. Program Fees

Organization shall pay the Program outlined in the Order.

3. Use of FDA-cleared thermometers for this program

Kinsa will ensure that all Thermometers distributed as part of the Program will have U.S. FDA clearance.

4. Warranties, Disclaimers, and Restrictions

Kinsa warrants that each Thermometer distributed under this Agreement shall be free from defects in materials and workmanship under normal use (“Warranty”) for a period of one (1) year from the date of receipt by Organization (the “Warranty Period”). Kinsa is not responsible for damage arising from failure to follow instructions relating to the Thermometer’s use.

If a hardware defect arises and a valid claim for breach of the Warranty is received by Kinsa within the Warranty Period, as Kinsa’s sole obligation for a breach of the Warranty, Kinsa will, at its option and to the extent permitted by law, either (1) repair the Thermometer at no charge, using new or refurbished replacement parts, or (2) replace the Thermometer with a new or refurbished Thermometer. If Kinsa repairs or replaces the Thermometer, the repaired or replaced Thermometer will continue to be warranted for the remaining time of the original Warranty Period.

Kinsa makes no representations or warranties, implied or otherwise, to the End User under this Agreement. The EULA governs the relationship between Kinsa and the End User.

End Users are not permitted to order more than one Thermometer per household. Organization is not permitted to order Thermometers on behalf of End Users; End Users must order their Thermometer directly through the application.

Organization is not permitted to sell Thermometers. Organization is not permitted to distribute Thermometers, except to its own participants in accordance with this Agreement.

5. Use of information from thermometers distributed under this Agreement

As Kinsa’s mission is to stop the spread of contagious illness through early detection and early response, upon consent from the End User through acceptance of Kinsa’s Privacy Policy, the data from Thermometers is used to contribute to a nationwide ability to hotspot outbreaks. Temperature and related readings from Thermometers distributed under this Agreement, and data provided by End Users of such thermometers (collectively “User Data”), may be used by Kinsa as described in the Kinsa Privacy Policy. Certain User Data may be provided to Organization, solely upon the expressed consent of the End User. For clarity, except for any license expressly described in this Agreement, as between the parties, Kinsa is the sole owner of, and retains all rights in and to, the User Data, Kinsa App, Program, the Portal, and all of Kinsa’s and its licensors’ preexisting works of authorship and other intellectual property, including Kinsa’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, process, including, without limitation, software and code (and related components), and any patent, copyright, trademark, trade secret or other intellectual property rights in any of the foregoing, whether possessed by Kinsa prior to, or acquired, developed, or refined by Kinsa during the term of this Agreement.

6.  Organization Obligations

  • Organization shall perform those tasks and fulfill those responsibilities agreed to in writing by Organization, and provide reasonable access to Organization personnel and resources as necessary to perform Kinsa’s services.
  • Organization will make reasonable efforts to assist Kinsa in raising awareness about the Program to schools and households.  
  • Organization agrees to publicly announce the partnership and its participation in Kinsa's Program. Organization shall work with Kinsa to publish a joint press release or pursue a joint media announcement highlighting the services being performed relating to the Order at Kinsa’s discretion, to be completed no later than 3 weeks after execution of the Order. 
  • Organization permits Kinsa to use Organization’s name to publicly identify Organization as a Kinsa client; (a) in a press release, (b) on Kinsa’s website and other marketing materials, and (c) through other public communications. Organization shall provide Kinsa with a testimonial appropriate for Kinsa’s use in such communications within 10 days of Kinsa’s reasonable request therefore.
  • Organization shall use all reasonable efforts, and provide all information reasonably requested by Kinsa, to participate in a case study to determine the effectiveness and utility of the Program in stopping the spread of infection illness.

7.  Term

The term of each Order shall be set forth therein. Upon expiration, the term of each Order shall automatically renew on an annual basis for consecutive one year renewal terms unless either party provides the other party with notice of non-renewal at least 60 days prior to the expiration of the then current annual term.

KINSA GENERAL TERMS & CONDITIONS

1. SERVICES: Kinsa shall provide to Client data, documentation, software, analysis, applications, and/or consultancy services (collectively, the “Services”) described in each applicable order, statement of work, or other form of document referencing these General Terms (each, an “SOW”). “Client” shall mean the client set forth in the applicable SOW. As used herein, “Agreement” shall mean any relevant SOW, together with these Kinsa General Terms & Conditions (“General Terms”) where incorporated therein by reference, and any schedules, riders, addenda, or supplemental terms attached thereto or referenced therein (collectively, “Supplemental Terms”). Client shall provide all relevant information, instructions, and/or access to Client’s information technology systems reasonably required for Kinsa to provide the Services. Kinsa will determine the methodology, means, and approach for the provision of any and all Services and projects in its sole discretion. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or other-wise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Client shall also be responsible for maintaining the security of the Equipment, Client’s account, and passwords (including but not limited to administrative and user passwords) and files.

2. LICENSE: Kinsa grants to Client a limited, non-exclusive, non-sublicensable, non-transferable license to use the Kinsa Materials contained in the Services internally and solely for its own direct benefit, and only as necessary within and/or in conjunction with such Services, subject to the restrictions set forth herein and any geographic, site, or other limitations as may be specified in the SOW. “Kinsa Materials” shall mean any and all data and/or databases (collectively, “Kinsa Data”), data models, documentation, software, source code, object code, tools, algorithms, user interface designs, methodologies, concepts, and other materials owned by or licensed to Kinsa prior to, independently of, or in conjunction with its performance of the Services or compiled, obtained, and/or generated by Kinsa in its performance of the Services, any information or materials derived from the foregoing, and all intellectual property rights therein.

3. RESTRICTIONS: Any access of Kinsa Materials by third parties shall be subject to Kinsa’s prior written consent and such third party’s execution of a third party access agreement or similar agreement with Kinsa, except as may be otherwise specifically permitted pursuant to an applicable Kinsa policy. In addition, Client shall not directly or indirectly reverse engineer, decompile, disassemble, or analyze the Services for the purposes of (i) re-identifying methodologies, algorithms, processes, or procedures embedded in the Services, or otherwise used to produce the Services, (ii) identifying or isolating the information associated with specific outlets, suppliers, prescribers, or other entities or individuals not explicitly identified in any Services provided to Client, or (iii) accessing or deriving the source code for any licensed software.

4. PROPRIETARY RIGHTS: Client acknowledges and agrees that the Kinsa Materials shall remain the sole and exclusive property of Kinsa (and/or its licensors, as applicable). Kinsa does not grant, and Client does not receive, any other interest in any Kinsa Materials, Services or Deliverables, except for those rights explicitly granted under the Agreement. “Deliverables” shall mean all deliverables to be provided to Client hereunder. Notwithstanding anything to the contrary in this Agreement, Client grants Kinsa a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback (as defined below) for any and all purposes. Client agrees that it does not have to provide Feedback to Kinsa. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Client (whether in oral, electronic or written form) to Kinsa regarding the Services or Kinsa Materials. Kinsa shall retain sole and exclusive ownership of the Services and Kinsa Materials, as currently existing or modified over time using such Feedback, unless otherwise expressly agreed in writing by Kinsa in advance. Client shall not remove, alter, modify, or deface any confidential, copyright, or other proprietary notices contained on, affixed to, encoded, or recorded in any Kinsa Materials, or fail to preserve or denote all copyright and other proprietary notices with respect to, all Kinsa Materials. Client acknowledges and agrees that Kinsa Materials and all rights therein are the valuable property of Kinsa. As such, since Kinsa is solely sharing the Kinsa Materials with Client for the permitted purpose in the SOW, Client acknowledges and agrees that Client may not register or file to protect any intellectual property or proprietary right in any works derived from the Kinsa Materials; provided that the copyright to any permissible publication shall remain with the author.

5. PAYMENT: Client agrees to pay such fees as may be specified in an SOW. Unless otherwise specified in the SOW, Client shall pay the amount of each invoice from Kinsa within thirty (30) days from the date of the invoice. If Client fails to pay any amount when due, Client shall pay, in addition to the invoice amount, interest at a rate equal to the lesser of 1% month on the unpaid amounts, or the maximum amount permitted under applicable law until such amounts are paid. If applicable, Client shall have the exclusive responsibility for paying all applicable taxes, duties, fees, levies, or other governmental charges payable in connection with the Services except for taxes based on Kinsa's net income.

6. CONFIDENTIALITY: Neither party shall communicate, disclose, or provide to any third party any information provided by one party to the other in connection with the Services which is identified at the time of its disclosure as confidential or which, by the nature or type of information, reasonably should be regarded as confidential information (collectively “Confidential Information”), except as otherwise expressly permitted in these General Terms or Kinsa policies. Client acknowledges and agrees that the Kinsa Materials are confidential to Kinsa. Each party agrees to treat the terms of the Agreement, including any pricing details, as the Confidential Information of the other party. Each party agrees to treat the Confidential Information of the other as confidential, using the same degree of care used by the receiving party to protect the receiving party’s own confidential information, but in any event not less than a reasonable degree of care. Each party shall advise permitted recipients of Confidential Information of the confidential nature of such information. Notwithstanding the foregoing, Kinsa may add Client’s name to Kinsa’ published list of customers. This confidentiality provision does not apply to any information: (i) available in the public domain through no fault of the receiving party; (ii) independently developed by or on behalf of the receiving party without reference to any Confidential Information of the disclosing party; or (iii) disclosed to the receiving party without restriction by a third party having a bona fide right to do so and not having an obligation of confidence with respect to such information; provided, however, that none of the foregoing exceptions shall apply to Kinsa Data. Nothing in this Agreement shall restrict a party from disclosing any Confidential Information where the production of any such Confidential Information is compelled under process or request by a court or administrative or law enforcement agency of competent jurisdiction, provided that in each case the producing party shall ensure that such Confidential Information is afforded the highest level of protection via any available mechanisms for the protection of confidential or proprietary materials, and provided further that no disclosure of any Kinsa Data may be made in such circumstances without Kinsa’s written consent.

7. DATA PROTECTION: To the extent (if any) that either party receives or provides personally identifiable information (“PII”) in the course of performing or receiving Services, the parties agree that they will comply with the data privacy laws applicable to its provision or receipt of such PII. The party providing such PII is responsible for providing, obtaining and maintaining any notices, consents or approvals necessary to make such information available to the other party for processing and use. Client agrees that any PII relating to Client’s employees, consultants and agents provided to Kinsa in connection with the performance of the Services may be used and processed by Kinsa in connection with the administration and provision of the Services, and to identify and inform Client (including Client’s employees, consultants and agents) of additional Kinsa services which may be of interest to them.

8. TERMINATION:

a. Each SOW shall become effective as of the date of any such SOW and shall continue until the expiry or earlier termination thereof. Each SOW shall be independent of any other SOW, and the expiration or termination of one SOW shall not affect any other SOW.

b. Except as may be expressly provided in an SOW, either party may terminate an SOW only as follows: (i) immediately where any license restrictions, intellectual property rights, or payment obligations are breached by the other party, or in the case of insolvency of the other party, or (ii) upon thirty (30) days’ written notice to the other party in the event of a material breach of any SOW (except in the case of force majeure) by the other party that has not been cured within such thirty (30) day period. Any breach of any provision of the Agreement shall be deemed to be a breach of the relevant SOW. Any Services and Client’s license in the Kinsa Materials shall immediately terminate in the event of any termination by Kinsa pursuant to (i) or (ii) above.

c. Without prejudice to any rights or remedies available to Kinsa, in the event of any permitted termination of any SOW, Client shall pay Kinsa, at a minimum, for the Services performed through the effective date of termination and all noncancelable expenses.

d. Sections 2 (License), 3 (Restrictions), 4 (Proprietary Rights), 5 (Payment), 6 (Confidentiality), 7 (Data Protection), 9 (Warranty and Disclaimer), 10 (Limitation of Liability), and 11 (Miscellaneous) of these General Terms shall survive and remain in effect after expiration or termination of any SOW.

e. If Kinsa discontinues production or support of any Services with respect to all of its clients, Kinsa shall use commercially reasonable efforts to give Client advance written notice of any such discontinuance. If Kinsa discontinues any Services for which Client has prepaid, Client shall receive a pro-rata refund of any prepaid fees for the terminated Service not supplied to Client.

9. WARRANTY AND DISCLAIMER:

a. Warranty: Kinsa warrants that the Services shall substantially conform to the applicable Kinsa published specifications prevailing as of the time the Services are rendered (“Published Specifications”). Client shall assume sole responsibility for any use of the Services that is inconsistent with such Published Specifications. The entire liability of Kinsa, and Client’s exclusive remedy for any breach of this warranty, shall be for Kinsa to use commercially reasonable efforts to correct, in accordance with Kinsa operating procedures for quality assurance, any such non-conformance which has been properly reported by Client to Kinsa in writing within 60 days of delivery of the affected Services.

b. Disclaimer: Except as set forth above, the Services, Deliverables, and Kinsa Materials are provided on an “as-is” basis without any further warranties of any kind. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, KINSA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES AND THE KINSA MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.

10. LIMITATION OF LIABILITY:

a. No Consequential Damages: To the fullest extent permitted under applicable law, Kinsa shall not be liable for any incidental, consequential, indirect, or special damages, lost business or anticipated savings, lost profits, lost data, lost goodwill, or third party claims, whether foreseeable or not, arising out of or in connection with the Services or the Agreement even if Kinsa has been advised, knew, or should have known, of the possibility of such damages and regardless of the form of action, whether in contract or in tort, including negligence and strict liability.

b. Liability Limitation: To the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract or in tort, including negligence and strict liability, Kinsa’s total liability, if any, for any and all claims arising out of or in connection with the Services or the Agreement shall not exceed the total fees (excluding taxes) paid by Client under the applicable SOW over the last twelve (12) months with respect to the affected portion of the Service or Deliverable.

11. MISCELLANEOUS:

a. Entire Agreement: The Agreement constitutes all of the terms and conditions with respect to the subject matter of each SOW, merging, integrating, and superseding all prior and contemporaneous representations and understandings with respect thereto. No modification, amendment or waiver of any of the provisions of any Agreement shall be binding upon the parties unless made in writing and duly executed by authorized representatives of Client and Kinsa. The Agreement shall take precedence over Client’s additional or different terms and conditions, including any general terms of purchase of Client, to which notice of objection is hereby given. No SOW is intended to benefit any third party unless expressly stated therein.

b. Order of Precedence: In the event of any conflicts or inconsistencies among the Agreement, the following order of precedence shall apply, but only with respect to the specific subject matter of each: (i) Supplemental Terms, (ii) SOW terms, (iii) General Terms.

c. Force Majeure: Except for the obligation to pay money for Services rendered or Deliverables provided, each party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including the failure of any data supplier of Kinsa to timely supply data.

d. Assignment: Except as set out below, Client shall not without the prior written consent of Kinsa assign, transfer, or otherwise delegate, in whole or in part, the benefit of, or Client’s rights or obligations under the Agreement. Kinsa and Client each shall have the right to assign the Agreement (including by operation of law) to the surviving party of any merger, acquisition, or reorganization to which it is a party, or to the purchaser of all or substantially all of such assigning party’s assets, provided, however, that no such assignment by Client shall be to a competitor of Kinsa, and provided further that any assignment by Client shall not entitle such permitted assignee to receive the pricing extended to Client hereunder or to use any Services or Deliverables for the benefit of the assignee’s existing business (i.e., its business existing prior to such assignment). Such pricing and use shall require further written agreement between the permitted assignee and Kinsa.

e. Governing Law: Except as otherwise specified in an SOW, the Agreement and all matters arising out of or related thereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of law principles, and any dispute between Client and Kinsa arising out of or related to the Agreement will be heard by and be subject to the exclusive jurisdiction of the state and federal courts of San Francisco County, California.

f. Compliance with Applicable Laws: Neither Kinsa nor Client shall violate any law or regulation directly applicable, in the case of Kinsa, to its performance of the Services and, in the case of Client, to the receipt or use of the Services. Nothing contained in the foregoing shall be interpreted to shift Client’s legal or regulatory compliance obligations, which are and shall remain the sole responsibility of Client.

g. Export Restrictions: Client hereby acknowledges that the Services, Deliverables, and Kinsa Materials may be subject to United States or European Union export control and sanctions laws. Client agrees that the Services, Deliverables and Kinsa Materials shall not, without all appropriate licenses and authorizations, be provided to or used in support of business with any person, entity or territory subject to United States or European Union sanctions, nor shall they be exported or re-exported to any person or destination prohibited by, or otherwise used in violation of, applicable export control or economic sanctions laws.

h. Execution: An SOW may be executed by the parties on the same or separate counterparts, and/or by .pdf or electronic signature. Any executed copy of an SOW made by reliable means (e.g., scanned image, photocopy, or facsimile) will be deemed to be an original, and all executed counterparts together will constitute one and the same instrument.

i. Notices: Client shall provide prompt written notice to Kinsa of any material breach by Client of any SOW. All notices or demands required in connection with any SOW shall be given in writing and shall be delivered to the respective addresses identified in the applicable SOW by an internationally-recognized common carrier’s overnight delivery service providing proof of delivery. For any notices sent to Kinsa, a required copy shall also be sent to the attention of the Kinsa Legal Department at its global corporate offices in the United States.

j. Waiver / Severability: The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or the right of any of the parties thereafter to enforce each and every provision in accordance with the terms of this Agreement. If any provision of the Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.