Terms of Use of DataKonect for HealthyHealth

Terms of Use 

DataKonect App and Website – End User Terms of Use

Last updated 2020-04-01

 

  1. Introduction

  2. Definitions

  3. About the DataKonect App

  4. DataKonect Services

  5. DataKonect Profile

  6. Your personal data

  7. Wellness profile

  8. Third party products and links

  9. Intellectual property rights

  10. Use of the DataKonect App and Services

  11. Closing your DataKonect Profile

  12. Important disclaimers

  13. Limitation of liability

  14. Making complaints

  15. Other important terms

  16. Notice Regarding Apple

 

  1. Introduction

    1. The DataKonect mobile software application (the “DataKonect App”) or the website equivalent [www.DataKonect.com ] (the “Website”) are provided to you by HEALTHYHEALTH-UK LTD, a company registered in England and Wales with company registration number 10964467 (HH, our, we or us). Our registered office is at 14 Dufferin Street EC1Y 8PD, London, UK. You can contact us by emailing us at support@healthyhealth.com.

    2. Please read these end user terms of use (“Terms of Use”) carefully as they set out the basis on which you (also referred to as the user) are allowed to use the services, which are offered by us via the DataKonect App and the Website, as more particularly described in section 4 below (the “Services”).

    3. By clicking “I agree” to the Terms of Use when using the DataKonect App and/or continuing to use any part of the DataKonect App, Services or Website, you confirm your acceptance of these Terms of Use (which also includes our Privacy Policy and any other terms that we may make available from time to time). If you do not agree to these Terms of Use, then you do not have our permission to use the DataKonect App, Website, or Service. If you have any questions about these Terms of Use, please contact us at support@healthyhealth.com.

    4. Your particular attention is drawn to the following provisions of these Terms of Use:

      1. Section 7.2 – the information provided on the DataKonect App, Services and/or Website does not constitute health or medical advice. 

      2. Section 7.4 – any advice or information provided via the DataKonect App, Services and/or Website has not been evaluated by medical professionals or medical bodies, and is not intended to diagnose, treat, or cure any illness, condition or other physical or mental health issue. It is not intended to be, and should not be used in the place of, the advice of medical professionals or any information provided on any product packaging or label. For advice on medical, health and wellbeing issues you should always consult your doctor or other qualified healthcare professional.

      3. Section 7.5 – you must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the information made available via the DataKonect App, Website and/or Services.

      4. Section 10 sets out important information relating to the use of the DataKonect App, Website and Services and your responsibilities.

      5. Section 11 sets out information on how to close your DataKonect profile.

      6. Section 13 sets out important information relating to limitation of liability.

      7. Section 14 sets out information on making complaints.

    5. We are providing you with the opportunity to access the DataKonect App and Website and receive the Services because you are a customer or an employee of a HH Client (as defined below). HH is not responsible for any actions or decisions, for whatever reason, made by any HH Client as a result of using the Service.

    6. The DataKonect App, Website and Services are not directed at any person in any jurisdiction where the publication or availability of them are prohibited. You must not access the DataKonect App, Website and/or Services from any such jurisdiction. You are responsible for all compliance with local laws and regulations which apply to you.

 

2. Definitions

 

Capitalized terms used in these Terms of Use shall have the meaning given to those terms below.

“Agreement” means the agreement between HH and a HH Client pursuant to which HH has agreed to provide you with access to the DataKonect App, Website and Services.

“Collated Data” means all data about you which is collated within the DataKonect App and Website for the purposes of providing the Services, including data provided by you and data we collect from third parties about you, as set out in our Privacy Policy [www.DataKonect.com/data-privacy-policy]. As set out in the Privacy Policy, this data may include your gender, age, weight, pre- existing conditions, walking and running distance, cycling distance, heart rate (and related information), blood pressure, weight and BMI.

“HH Client” means the company that has entered into an Agreement with HH for the DataKonect product.

“DataKonect profile” means your “wellness profile” with HH for the DataKonect App, Website and Services, containing records of the Collated Data the DataKonect App and Website have received and the DataKonect information which the DataKonect App and Website have provided to you.

“Privacy Policy” means our privacy policy available via [www.DataKonect.com/data-privacy-policy].

“DataKonect App” shall have the meaning given to the term in section 1.1.

“Services” shall have the meaning given to the term in section 1.2.

“Terms of Use” shall have the meaning given to the term in section 1.2.

“Website” shall have the meaning given to the term in section 1.1.

 

3. About the DataKonect App and Website

 

  1. The DataKonect App and Website allow you to create a personalized DataKonect profile which incorporates your Collated Data.

  2. The DataKonect App and the Website will provide you and the HH Client with a DataKonect profile using your Collated Data.

 

4. DataKonect Services

 

  1. HH provides the following DataKonect Services:

    1. making the DataKonect App available for download through various online channels (including the DataKonect App Store and Google Play) as well on the Website;

    2. the ability for you to create, maintain and amend your DataKonect profile through the DataKonect App and Website;

    3. synchronization of the Collated Data with your DataKonect profile to update your DataKonect profile;

    4. access to wellness information through the DataKonect App and Website; and

    5. communications via email, SMS or other means as set out in in the Privacy Policy. HH and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. You may opt out of receiving marketing and/or operational text messages at any time by sending an email to support@healthyhealth.com indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts or by replying “STOP”  from the mobile device receiving the messages.  You may continue to receive text messages for a short period while HH processes your request, and you may also receive text messages confirming the receipt of your opt-out request.  Opting out of receiving operational text messages may impact the functionality that the Service provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.

  2. You must be aged 18 years or over to use the DataKonect App and Website and receive the Services.

  3. Sometimes the DataKonect App and Website may  request additional permissions related to the settings on your mobile or wearable device, such as accessing your location or enabling push notifications to enable certain features. If you decide not to give us such permissions, this may result in you not having access to certain features of the DataKonect App, Website and/or Services. You can turn off notifications by visiting your mobile device’s “settings” page.

  4. We may, from time to time, extend or amend the functionality of the DataKonect App, Website and/or the Services, and offer additional functionality or other services to you. HH reserves the right to modify or discontinue the DataKonect App, Website, or Service at any time (including by limiting or discontinuing certain features), temporarily or permanently, without notice to you. HH will have no liability for any change to the DataKonect App, Website, or Service or any suspension or termination of your access to or use of the DataKonect App, Website, or Service. These additional functions may include any software maintenance, amendments and/or upgrades to existing features. These Terms of Use will apply to any additional services, unless we provide you with specific terms and conditions when we make the other service functionality available to you.

 

5. DataKonect profile

 

  1. You will be given the option to create a DataKonect profile once you have downloaded the DataKonect App and/or accessed the Website and agreed to these Terms of Use.

  2. To create a DataKonect profile you must provide us with your name, email address and a username. If you access the service through a client providing you the access to your profile via a unique link, we will use this link to associate your profile to your userID and refer to you only via this userID with our client. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@healthyhealth.com.

  3. You must also give us permission to sync the DataKonect App with your Collated Data. If you do not give us permission to sync the DataKonect App with your Collated Data, we will not be able to provide you with the Service.

 

6. Your personal data

 

  1. In order to provide the DataKonect App, Website and Services, we must collect, process and store certain data, including some of your personal data and the Collated Data.

  2. We are committed to protecting and respecting your privacy. The collection, processing and storage of your data shall be carried out in accordance with and governed by these Terms of Use and our Privacy Policy. Please see our Privacy Policy [www.DataKonect.com/data-privacy-policy] for more information about the data we collect from you and how we use it.

  3. By providing data to or via the Service, you grant HH a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute such data, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You grant your referring HH Client a non-exclusive license to access and use that data as permitted by these Terms of Use and the functionality of the Service.

 

7. Not Medical Advice

 

  1. The aim of the DataKonect App, Website and our Services is to provide each user and the respective HH Client with the user’s DataKonect profile.

  2. We aim to tailor this information in relation to each user and provide a relevant DataKonect profile to them. However, the information provided on the DataKonect App, Website and Services does not constitute a validated source for health or medical advice.

  3. You acknowledge and agree that all information and materials provided via the DataKonect App, Services and/or Website, whether provided by HH or third parties, is provided for general information purposes only. Any advice or information provided via the DataKonect App, Services and/or Website must not be relied upon as being correct or appropriate for you.

  4. Any information provided via the DataKonect App, Services and/or Website has not been evaluated by medical professionals or medical bodies, and is not intended to diagnose, treat, or cure any illness, condition or other physical or mental health issue. It is not intended to be, and should not be used in the place of, the advice of medical professionals or any information provided on any product packaging or label. For advice on medical, health and wellbeing issues you should always consult your doctor or other qualified health care professional.

  5. You must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of the information made available via the DataKonect App, Services and/or Website.

 

8. Third party products and links

 

  1. The DataKonect App or Website may provide links to third party websites, for example, when referring to a product or information that we feel may be of interest to you, or in general.

  2. If you access any third party websites or purchase any products or services via a link to a third party website provided through the DataKonect App or Website, the terms and conditions and privacy policy of that website shall apply to such access and/or purchase. Third party services are not under HH’s control, and, to the fullest extent permitted by law, HH is not responsible for any third party service’s use of your information or any content on their sites. We make no warranty regarding any goods or services purchased or obtained from third parties as a result of using the DataKonect App, Services or Website. We make no warranty regarding any third party devices used to access or provide data to our DataKonect App, Website or Services. You should in all cases make your own inquiries. In particular, it is your responsibility to satisfy yourself that a third party supplier is solvent and has suitably qualified and certified personnel (as appropriate).

  3. We will not be a party to any contract made between you and any third party supplier and therefore we shall not be liable for any loss or damage that results from any dealings between you and any such third party supplier, including but not limited to any direct or indirect loss of any kind.

  4. We do not warrant the appropriateness or accuracy of any information made available to you by a third party website linked from the DataKonect App, Website or Services (regardless of source), and we accept no responsibility or liability for the appropriateness, accuracy or any other aspect of such websites or the information made available by them to you; or any loss or damage that may be suffered as a result of following any links.

  5. The DataKonect App and the DataKonect Website may integrate with social networking platforms and other third party applications (for example, Facebook, Instagram, Twitter). Your use of any integrated applications will be subject to those third parties' terms and conditions and privacy policies.

 

9. Intellectual property rights

 

You acknowledge and agree that all present and future copyright and other intellectual property rights subsisting in, or used in connection with, the DataKonect App, the Website and Services or any part of them, including the manner in which the DataKonect App, the Website and Services are presented or appear and all information and materials relating to them, is our property (or that of our licensors), and nothing in these Terms of Use or your use of the DataKonect App, the Website or Services shall be taken to transfer any of these rights to you. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the DataKonect App, the Website or Services (“Feedback”), then you hereby grant HH an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the DataKonect App, the Website or Services and create other products and services.

 

10. Use of the DataKonect App, Website and Services

 

  1. Please note that we do not guarantee that the DataKonect App, Website or Services will be compatible with your mobile device. 

  2. We also do not guarantee that the DataKonect App, Website or Services will be compatible with your wearable device(s) for the purposes of syncing the Collated Data.

  3. Please also note that the use of the DataKonect App, Website and/or Services may be impacted by the terms of your agreement with your mobile device supplier, manufacturer and/or phone service provider. Such use may require the use of data which may incur costs with your phone service provider, particularly when using roaming tariffs abroad.

  4. We grant you a license to use our DataKonect App, Website and Services that is personal to you only, limited, non-exclusive, revocable, non-transferable, non-sublicensable license to: (a) install and use one object code copy of the DataKonect App obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Website and Service. This license is granted to you to allow you to electronically access and use the DataKonect App and Services for the purpose of receiving the benefit of the DataKonect App, Website and Services in accordance with these Terms of Use.

  5. You agree that you shall:

    1. provide true, accurate, current and complete information about yourself when you create your DataKonect profile and maintain and promptly update this data to keep it accurate, current and complete;

    2. not allow anyone else to make use of your DataKonect profile;

    3. not undertake any activity which may harm our reputation or bring us into disrepute;

    4. not use the DataKonect App, Website or Services for any fraudulent purpose or to send, upload or post any content which is abusive, defamatory, indecent, menacing, obscene or breaches the rights (including intellectual property rights) of any third party;

    5. not use the DataKonect App, Website or Services to impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that we endorse any statement you make;

    6. not introduce, transmit or otherwise make available on or via the DataKonect App, Website or Services any virus, worm, Trojan horse, spyware, or other computer code, file, or programme that is harmful or invasive or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;

    7. not restrict or inhibit any person from using the DataKonect App, Website or Services (including hacking or defacing any portion of the servers or networks used to host the DataKonect App, Website or Services);

    8. not replicate, modify, adapt, translate, reverse engineer, copy, decompile, or disassemble any portion of the DataKonect App, Website or Services;

    9. not remove any copyright, trade mark, or other proprietary rights notice from any portion of the DataKonect App, Website or Services; 

    10. reproduce, distribute, publicly display, or publicly perform the Service or  make modifications to the Service; and

    11. not cause the DataKonect App, Website or Services to be interrupted, damaged, rendered less efficient or such that the effectiveness or functionality of the DataKonect App, Website or Services is in any way impaired.

 

11. Termination; Closing your DataKonect profile

 

  1. These Terms of Use are effective beginning when you accept the Terms of Use or first download, install, access, or use the DataKonect App or Service, and ending when terminated as described in these Terms of Use.

  2. You can uninstall the DataKonect App at any time, using the functionality within the DataKonect App or your mobile device. Please note though that uninstalling the DataKonect App will not automatically result in the closure of your DataKonect profile. To close your DataKonect profile, please send an email to support@healthyhealth.com

  3. We reserve the right to terminate or restrict your access to the DataKonect App, Website and/or Services at any time without notice for any reason whatsoever. Where possible, we will endeavour to provide you with notice of any such termination or restriction of access. 

  4. If you violate any provision of these Terms of Use, your authorization to access the Service and these Terms automatically terminate. If these Terms of Use are terminated or if your DataKonect Profile has been successfully provided to the Client, your access to the DataKonect App, Website and Services will cease. 

 

12. Important disclaimers; No warranties

 

  1. While we will aim to maintain an uninterrupted service through the DataKonect App, Website and Services, they are provided on an “AS IS” basis and we do not promise that your access to the DataKonect App, Website or Services will be delivered uninterrupted, securely, in a timely manner or error-free, or that the DataKonect App, Website or Services will be free from viruses or other harmful properties. We recommend that you always use up to date firewalls and anti-virus software to protect your equipment and data. HH DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HH DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND HH DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. HH does not disclaim any warranty or other right that HH is prohibited from disclaiming under applicable law.

  2. From time to time, we may carry out maintenance of the DataKonect App, Website or Services which may result in certain parts of the DataKonect App, Website or Services becoming unavailable.

  3. While we try to make sure that the DataKonect App, Website and Services are secure, you should note that transmission of information via the Internet may not be absolutely secure and could be subject to interception by third parties.

  4. We reserve the right to modify or discontinue temporarily or permanently all or part of the DataKonect App, Website and/or Services, with or without notice, without liability for any modification or discontinuance.

 

13. Limitation of liability

 

  1. Notwithstanding any other provision, nothing in these Terms of Use shall exclude or limit our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, or any other liability that cannot lawfully be excluded or limited.

  2. If you are dissatisfied with the DataKonect App, the Website, the Services or any of these Terms of Use, your sole remedy under these Terms of Use shall be to discontinue use of the DataKonect App, the Website and Services.

  3. Other than as set out in this section 13, and notwithstanding any other provision of these Terms of Use, we shall not be liable in contract, tort (including negligence), statutory duty, misrepresentation or otherwise, for any loss or damage whatsoever arising from or in any way connected with these Terms of Use (including our provision of access to and your use of the DataKonect App, the Website and/or the Services), including any liability for: (a) any of the following: (i) loss of profits; (ii) loss of sale or business; (iii) business interruption; (iv) loss of agreements or contracts; (v) loss of anticipated savings; (vi) loss of or damage to goodwill; or (vii) whether the same are suffered directly or indirectly; or (b) any indirect or consequential loss or damage whatsoever.

  4. All conditions, warranties and obligations which may be implied or incorporated into these Terms of Use by statute, common law, or otherwise and any liabilities arising from them are hereby expressly excluded to the extent permitted by law.

  5. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for indirect losses. Accordingly, some of the above limitations of liability may not apply to you.

  6. To the extent that any limitation or exclusion of liability in these Terms of Use proves ineffective, our maximum aggregate liability under or in connection with these Terms of Use (including your use of the DataKonect App, Website and Services) whether in contract, tort (including negligence), statutory duty, misrepresentation or otherwise, shall in all circumstances be limited to $100 in aggregate.

  7. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify HH and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms of Use, any representation, warranty, or agreement referenced in these Terms of Use, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

 

14. Making complaints

 

If you have any complaint about the DataKonect App, the Website or any of the Services we provide, you should contact us at support@healthyhealth.com and we will try and resolve it as soon as possible.

 

15. Other important terms

 

  1. We may vary these Terms of Use from time to time. You are advised to regularly check these Terms of Use for any such variation and note the date set out above on which these Terms of Use were last updated. The amended Terms of Use will take effect on the date on which we publish any variation through the DataKonect App. If you do not agree with the amended Terms of Use then you have the right to stop using the DataKonect App, Website and Services, and should do so immediately. Your continued use of the DataKonect App, Website and/or Services after the date the changes have been posted will constitute acceptance of the amended Terms of Use.

  2. Section headings are inserted for convenience only and shall not affect the interpretation of these Terms of Use.

  3. Each paragraph of these Terms of Use shall be construed separately and independently of the other paragraphs.

  4. No waiver shall be effective unless in writing, and no waiver shall constitute a continuing waiver so as to prevent us from acting upon any continuing or subsequent breach or default.

  5. Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

  6. If any provision of these Terms of Use shall be interpreted by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect and remain enforceable between you and us.

  7. We are an independent service provider for all purposes when carrying out our obligations under these Terms of Use. Nothing in these Terms of Use is intended to, or shall be deemed to, establish any other kind of legal relationship including partnership, agency, trustee, fiduciary duty, joint venture or any other form of legal association between us.

  8. Notwithstanding any other provision in these Terms of Use, a person who is not a party to these Terms of Use has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce these Terms of Use.

  9. These Terms of Use constitute the entire agreement as to its subject matter and supersede and extinguish all previous communications, representations (other than fraudulent misrepresentations) and arrangements, whether written or oral. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

  10. These Terms of Use and any dispute or claim arising out of or in connection with them shall be governed by the laws of the State of New-York. You and we both agree that the courts of [New York City, New York] shall have exclusive jurisdiction.

  11. Nothing in these Terms of Use seeks to limit any mandatory rights that you may have as a consumer in your own jurisdiction or seek to prevent you from raising any claim in any court which you are entitled due to your status as a consumer.

  12. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

  13. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

 

16. Notice Regarding Apple. 

 

  1. This Section 16 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and HH only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.