End User License Agreement ("EULA")

Effective Date: October 5, 2023

This software end user license agreement (“EULA”) is a legal agreement between you and Kismet Health (“Kismet”). Read it carefully before downloading, installing, or using any Kismet software or services. By installing, downloading, or using Kismet’s software or services, you are confirming your acceptance of the software and agreeing to become bound by the terms of this agreement. If you do not agree to be bound by these terms, then do not install, download, or use any Kismet software or services.

License Grant. Kismet hereby grants you a personal, non-transferable, non-exclusive license to use Kismet’s software on your devices in accordance with the terms of this EULA agreement.

You are permitted to load Kismet software (“the Software”) on any device under your control. 

License Restrictions. You are not permitted to:

1. Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things.
2. Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose.
3. Allow any third party to use the Software on behalf of or for the benefit of any third party.
4. Use the Software in any way which breaches any applicable local, national or international law.
5. Use the Software for any purpose that Kismet considers is a breach of this EULA agreement.

Intellectual Property and Ownership. Kismet shall at all times retain ownership of the Software as originally downloaded, installed, used, or accessed by you and all subsequent downloads of the Software by you. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of Kismet.

Termination. This EULA agreement is effective from the date you first use the Software and shall continue until terminated. You may terminate it at any time upon written notice to kismet.

It will also terminate immediately if you fail to comply with any term of this EULA agreement. Upon such termination, the licenses granted by this EULA agreement will immediately terminate and you agree to stop all access and use of the Software. The provisions that by their nature continue and survive will survive any termination of this EULA agreement.

Personal Information. By creating a Kismet account, you agree that any information disclosed during account creation may be used to enable and enhance features in the software or as otherwise detailed in Kismet’s Business Associate Agreement (www.kismethealth.com/baa).

Eligibility. You affirm that you are of legal age of majority in your jurisdiction and are otherwise fully able and competent to enter into the terms of this agreement.

Privacy laws and regulations. You agree to comply with all laws and regulations in connection with your use of the Software, including, but not limited to: (1) with respect to personally identifiable information sent or received by you, all privacy laws and regulations, and (2) laws relating to the recording of communications, including, when required, advising all participants in a recorded Kismet meeting or event that the meeting or event is being recorded. It is your responsibility to ensure that you have the right to use the Software and its recording features where you are located, as well as where your meeting participants are located.

Warranties and Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KISMET EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE. THE SOFTWARE AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS”, “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. Kismet DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USING THE SOFTWARE REMAINS WITH YOU. KISMET’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE LIMITED TO THE COST OF THE SOFTWARE OR A REPLACEMENT COPY OF THE SOFTWARE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KISMET OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION OR LOST INFORMATION) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF KISMET HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

Confidentiality. You agree to regard and preserve as confidential all non-public information provided by Kismet relating to the business, systems, operations, source code, strategic plans, services, clients, pricing (including, but not limited to, the pricing terms herein), methods, processes, financial data, programs, and/or products of the other party in any form, that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential (herein “Confidential Information”). You agree to limit any disclosure of Kismet’s Confidential Information to as few persons as possible and only to those persons with a need to know and who are subject to an obligation to keep such information confidential. Except as needed to fulfill either party’s respective obligations under this agreement, in accordance with the consent or instructions of the disclosing party, or as expressly permitted herein, you agree not: (i) disclose Kismet’s Confidential Information to any person, firm, or enterprise without the disclosing party’s prior written consent, or (ii) use Kismet’s Confidential Information for your own benefit, or the benefit of a third party, the Confidential Information of the other party.

Indemnification. You agree to indemnify, defend and hold harmless Kismet, its affiliates, officers, directors, employees, consultants, and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from your use of Kismet’s services, your violation of this agreement or the infringement or violation by You or any other user of your account, of any intellectual property or other right of any person or entity or applicable law.

Choice of Law. This agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. 

Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this agreement will remain in full force and effect.

Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes. For any dispute with Kismet, you agree to first contact us at legal@kismethealth.com and attempt to resolve the dispute with us informally. In the unlikely event that Kismet has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to this agreement, your or the breach or alleged breach thereof, and your use of Kismet’s services (collectively, “Claims”), by binding arbitration by JAMS. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco, California, unless you and Kismet agree otherwise. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this agreement shall be deemed as preventing Kismet from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.

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