End User Licensing Agreement - Terms of Use

Effective Date:  This Terms of Use agreement was last updated on Apr 1, 2015.

This End User Licensing Agreement sets forth the standards, terms and conditions of use of the Products and Services (as defined below). By using the Products and Services you agree to these standards, terms and conditions. Kineteks Corporation (also referred to herein as “we”, “us”, “our” and “Kineteks”) reserves the right, at any time and in our sole discretion, to modify, alter, or update the terms and conditions of this Terms of Use Agreement without prior notice. Modifications will become effective immediately upon being posted on the Tractivity website (www.TractivityOnline.com). Except as provided in this paragraph, this Terms of Use Agreement may not be amended.

The term “Products and Services” as it is used in this Terms of Use Agreement includes, without limitation: the Tractivity website (www.TractivityOnline.com), Tractivity Connect application software, and Tractivity Mobile app, as amended from time to time; Tractivity Sensor products and the battery power source for those products; and the accessories in which Tractivity Sensor products are worn. Your continued use of the Products and Services, constitutes your acknowledgement and acceptance of this Terms of Use Agreement, as amended from time to time. If you do not agree to these standards, terms and conditions, then you should immediately cease all usage of the Products and Services.

1. Description of Service

Kineteks is providing you with on-line information and services. You must provide (1) all equipment necessary for your own Internet connection, including computer and networking equipment; (2) provide for your own access to the Internet; and (3) pay any fees related with such Internet connection.

2. Disclaimer

The tools and information on the Tractivity web site, including, without limitation, all text, graphics, images, and other material, (collectively, the “Site Content”), and the use of Tractivity Sensors, are intended only to provide users with information about their fitness and activity levels, and not to provide medical information or fitness advice. The Site Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your doctor or other qualified health provider with any questions you may have regarding an actually or suspected medical condition. Kineteks does not recommend or endorse any specific tests, medical professionals, products, procedures, opinions, or other information that may be mentioned on or accessed through its website. Reliance on any information provided on or accessed through the Tractivity website, or otherwise provided by Kineteks, Kineteks employees, others appearing on the Tractivity website at the invitation of Kineteks, or other visitors to the website is solely at your own risk. Never disregard professional medical advice or delay in seeking it because of something you have read on our website.

You should consult your doctor before starting an exercise regime, especially if you suffer from, or think you may suffer from, any physical limitation or medical condition. If you decide to start exercising after a period of relative inactivity you should start very slowly. If you feel any discomfort or pain when you exercise, do not continue. If you think you may have a medical emergency, call your doctor or 911 immediately.  Without limiting the foregoing, the use of the Products and Services is not intended for women who are pregnant or breast-feeding, or for any person under the age of 19.

The content used in Bounce Back is reproduced with permission from the American Academy of Orthopaedic Surgeons. Products or companies associated with this content are not necessarily recognized, known, approved, used or otherwise endorsed by the American Academy of Orthopaedic Surgeons (AAOS). Neither Kineteks nor AAOS will be responsible to you for any adverse events or actions arising from products or services advertised in or associated with this reprinted content.

3. Disclaimer of Warranties

The Products and Services are provided by Kineteks for your use at your sole risk, and on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Kineteks makes no representations or warranties of any kind, express or implied, regarding the use or the results of using the Products and Services in terms of correctness, accuracy, completeness, reliability, suitability for any physical activity or otherwise. Kineteks will have no liability for any interruptions in the use or accessibility of this website. Kineteks disclaims any and all warranties with regard to the safety or reliability of the Products and Services, including without limitation the information provided via this website, and any implied warranties of merchantability and fitness for a particular purpose, and non-infringement. Only to the extent that the laws of any particular jurisdiction applicable to your dealings with Kineteks limit or do not permit the foregoing exclusions of implied warranties, are such exclusions inapplicable.

4. Limitation of Liability

Kineteks WILL NOT be liable for any damages whatsoever, and in particular Kineteks will not be liable for any special, indirect, consequential, or incidental damages, or damages for lost profits, loss of revenue, or loss of use, arising out of or related to the use of the Products and Services, including without limitation this website or the information contained in it, whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise, even if Kineteks has been advised of the possibility of such damages. Only to the extent that the laws of any particular jurisdiction applicable to your dealings with Kineteks limit or do not permit the foregoing limitations and exclusions of liability for incidental or consequential damages are such limitations and exclusions inapplicable.

5. Indemnification

You agree to indemnify and hold Kineteks, its parents, subsidiaries, affiliates, director, officers, agents and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of your use of the Products and Services, your violation of this Terms of Use Agreement, or infringement by you or other users of the Tractivity website service using your computer or otherwise accessing your account on this website, of any intellectual property right or any other right or claim of any person or entity.

6. Registered Member Account

All users of Tractivity Sensors who establish an account on the Tractivity website (each such person being a “Member”) will receive a unique password and account ID. Members are entirely responsible for any and all activities which occur under their account whether authorized or not authorized. You are solely responsible for maintaining the confidentiality and integrity of your account, including your user ID and password. Each Member must notify Kineteks of any unauthorized use of the Member’s account or any other breach of security known or that should be known to the Member. A Member’s right to use the Tractivity website is personal to the Member. Each Member agrees not to resell or make any commercial use of the Tractivity website without the express written consent of Kineteks.

7. Modifications and Interruption to Service

Kineteks reserves the right to modify or discontinue the Tractivity website with or without notice to you. Kineteks will not be liable to you or any third party should it exercise its right to modify or discontinue the Tractivity website or the services offered on the website. You acknowledge and accept that Kineteks does not guarantee continuous, uninterrupted or secure access to the Tractivity website, and that the operation the Tractivity website may be suspended, interfered with or otherwise adversely affected by numerous factors or circumstances outside of our control.

8. Third-Party Sites

Our web site may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that we are not responsible for the availability of, or the content located on or accessed through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is subject to the terms of use and privacy policies of each such site, and we are in no way responsible for the operation, use or content of such sites. We encourage you to review the privacy policies and terms of use of any third-parties’ websites that you access.

9. Disclaimer Regarding Accuracy of Vendor Information

The specifications of the Product and Services and other information reported by us has either been provided to us by third-party vendors or collected from publicly available sources. While Kineteks makes reasonable efforts to ensure that the information reported by us in connection with the Products and Services on our web site and otherwise is accurate, we make no representations or warranties as to the accuracy or reliability of any such information. Kineteks makes no warranties or representations whatsoever with regard to any products or services provided or offered by any third-party vendor, and you acknowledge that any reliance on representations and warranties provided by any such vendor will be entirely at your own risk.

10. Governing Jurisdiction 

Our web site is operated in and provided from the Province of British Columbia, Canada.  As such, we are subject to the laws of the Province of British Columbia and federal laws of Canada applicable therein, and such laws will govern this Terms of Use Agreement, without giving effect to any choice of law rules. We make no representation that our Products and Services, including this web site, are appropriate, legal or available for use in any other locations.  Accordingly, if you choose to access our website, or otherwise use our Products and Services, you agree to do so subject to the laws of the Province of British Columbia, and the federal laws of Canada applicable therein.

11. Compliance with Laws

You assume all knowledge of laws applicable to this Terms of Use Agreement and your use of the Products and Services, and you are responsible for your compliance with any such laws. You may not use the Products and Services in any way that violates applicable provincial, state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any information or material relating to the Products and Services, or otherwise relating Kineteks, that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, provincial, state, national, or international law or regulation. This website is controlled, operated and administered by Kineteks from its offices within Canada. Kineteks makes no representation that the Products and Services, including this website, are appropriate or available for use at other locations outside Canada. The use of the Products and Services, including accessing this website, in or from jurisdictions where any or all of the Products and Services are illegal is strictly prohibited. If you access this website or otherwise use the Products and Services from a location outside Canada, you do so at your own risk and are responsible for compliance with all local laws.

12. Copyright and Trademark Information

All content included with the Products and Services, available on this site or otherwise, including site design, text, graphics, interfaces, and the selection and arrangements thereof is ©2011 Kineteks with all rights reserved, or is the property of Kineteks and/or third parties protected by intellectual property rights. Any use of such content, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Kineteks is strictly prohibited. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy our web pages or the content contained therein without prior written permission of an authorized officer of Kineteks. “Kineteks”, www.kinetekscorp.com, and TractivityOnline.com are proprietary marks of Kineteks. Our trademarks may not be used in connection with any product or service that is not provided by Kineteks, in any manner that is likely to cause confusion among customers, or in any manner that disparages, discredits, or is likely to be confused with the Products and Services or any other product or service of Kineteks or its Tractivity Online service. All other trademarks displayed on Kineteks website's are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those third-party vendors and service providers. In addition, such use of trademarks or links to the web sites of third-party vendors is not intended to imply, directly or indirectly, that those vendors endorse or have any affiliation with Kineteks.

13. User Conduct

If we determine that any user is not using our website responsibly and for its intended purposes, we have the right, in our sole discretion, to remove, edit, block, or delete such user's transmissions and information on our website, and use of our website. We also have the right, in our sole discretion, to suspend or terminate your access to and use of our websites, or delete information you have posted to our websites, without prior notice if you engage in any conduct that we believe, in our sole discretion: (1) violates any provision of this Terms of Use Agreement; (2) might be offensive to other users; (3) violates the rights of Kineteks or third parties; or (4) could give rise to any liability to Kineteks. If Kineteks suspects that your registration data is inaccurate or incomplete, we may suspend or terminate your Member account. Kineteks retains the right, in its sole discretion, to terminate any Member accounts involved with botnets or botnet related activities. If any hostnames are used as command and control points for botnets, Kineteks reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.

14. Age and Eligibility

In order to use the Products and Services you must be at least 19 years of age (or the legal age to form a binding contract in your jurisdiction if that age is other than 19 years of age). Individuals who are under the age of 19 (or the legal age to form a binding contract in their jurisdiction) ("Minors") are prohibited from using this website. Accordingly, if you are a Minor, please do not attempt to register as a Member on this website or send any personal information about yourself to us, including without limitation your name, address, telephone number, or email address. In the event that we learn that we have collected personal information from a Minor, we will delete that information as soon as reasonably practicable. If you believe that we might have any information from or about a Minor, please contact us at info@kinetekscorp.com. By using this website, you are deemed to have represented that the information that you provide about yourself (including your age) as requested in any account registration form is accurate and complete.

15. User-Generated Content

You may submit comments, suggestions, questions or other information to this website provided that the content is not illegal, obscene, threatening, defamatory, injurious or harassing and does not violate any person’s legal rights (including privacy, confidentiality and intellectual property rights) or contain any software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or spam. You will be solely responsible for the consequences of submitting such information and you understand that it is non-confidential (subject to our Privacy Policy). You hereby grant (or warrant that the owner of the content has granted) to Kineteks and its assigns a worldwide, perpetual, unrestricted, irrevocable, royalty-free, non-exclusive, assignable, sublicenseable and transferable license to use, copy, reproduce, modify, adapt, translate, prepare derivative works of, distribute and publish and otherwise exploit the content you provide on this website or in other Kineteks marketing materials or any ideas, concepts, know-how or techniques associated with such content for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on our part or of our assigns, and you hereby waive all moral rights, or agree, represent and warrant that all moral rights in such content are hereby irrevocably waived, in favour of Kineteks and its assigns. Kineteks, in its sole discretion, may disclose any information related to your use of the Products and Services as Kineteks deems necessary to comply with applicable law, regulation, legal process or governmental request. Testimonials may be provided on this website for informational purposes only. These reviews reflect the individual’s opinions and experiences with the Products and Services, and may not be your opinions or experiences.

16. Notices

All notices required or permitted to be given to Kineteks hereunder must be in writing and must be given by email to the following address: info@kinetekscorp.com. All such notices will only be deemed given on the date that such email is successfully transmitted to and received by Kineteks.

17. No Waiver

No failure by Kineteks to enforce or exercise any provision of this Terms of Use Agreement will constitute a waiver of that provision, whether for past or future actions. Only a written waiver signed by an authorized representative of Kineteks will be a valid and enforceable waiver.

18. Injunctive Relief

Kineteks will be entitled to enforce its rights hereunder specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Terms of Use Agreement and to exercise all other rights existing in its favour. You agree that money damages may not be an adequate remedy for any breach of this Terms of Use Agreement and that Kineteks may, in its sole discretion, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violation of this Terms of Use Agreement.

19. Headings

The headings of the sections of this Terms of Use Agreement are inserted for convenience only and will not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.

20. Other Terms

lf any provision of this Terms of Use Agreement are held, by an adjudicator of competent jurisdiction, to be unlawful, void or unenforceable for any reason, then the other provisions (and any partially-enforceable provision) will not be affected thereby and will remain valid and enforceable to the maximum possible extent. You agree that this Terms of Use Agreement and any other agreements referenced herein may be assigned by Kineteks, in our sole discretion, to a third party in the event of a merger, acquisition or other business arrangement. This Terms of Use Agreement will apply in addition to, and will not be superseded by, any other written agreement between us in relation to dealings with us. You agree that by accepting this Terms of Use Agreement, that you are consenting to the use and disclosure of your personally identifiable information and other practices described in our Privacy Policy Statement. You may not assign or otherwise transfer any right granted under this Terms of Use Agreement without the prior written consent of an authorized officer of Kineteks.