These Subscription Terms (“Subscription Terms”) are a binding agreement between Kinetically, Inc. (“Kinetically,” “we,” “us,” or “our”) and the person or entity accepting these Subscription Terms (“Customer,” “you,” or “your”) and govern your access to and use of Kinetically’s subscription-based software and related services.

By clicking to accept these Subscription Terms, creating an account, placing an order, starting a paid subscription, or accessing or using the Subscription Services, you agree to be bound by these Subscription Terms. If you do not agree, do not use the Subscription Services.

If you are accepting these Subscription Terms on behalf of a company, clinic, practice, or other legal entity, you represent and warrant that you have authority to bind that entity.

1. Definitions

“Account” means the account established by or for Customer to access the Subscription Services.

“Authorized User” means an employee, contractor, clinician, staff member, or other individual authorized by Customer to access and use the Subscription Services on Customer’s behalf, subject to the permitted number and type of users under Customer’s subscription plan.

“Customer Data” means data, content, materials, information, records, files, text, images, video, measurement data, reports, and other content submitted to, uploaded to, stored in, transmitted through, or generated within the Subscription Services by or on behalf of Customer or its Authorized Users, excluding Usage Data.

“Documentation” means Kinetically’s user guides, help materials, onboarding materials, and standard usage documentation we make available for the Subscription Services.

“Order” means the online checkout flow, order page, pricing page, order form, or other ordering process through which Customer purchases a subscription.

“Subscription Services” means Kinetically’s hosted software-as-a-service offering, related web portals, clinician-facing and patient-facing applications, dashboards, analytics, reporting tools, exercise workflows, support services, and related features purchased by Customer under an Order.

“Subscription Term” means the period during which Customer is authorized to use the Subscription Services, including any renewal terms.

“Usage Data” means technical logs, metadata, configuration data, usage statistics, product interaction data, performance data, and similar information relating to operation, support, security, and improvement of the Subscription Services, provided that Usage Data does not include Customer Data in identifiable form except as needed to provide the Subscription Services.

2. Subscription Services

Subject to these Subscription Terms and Customer’s payment of all applicable fees, Kinetically grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Subscription Services for Customer’s internal business purposes in accordance with the applicable plan, Documentation, and these Subscription Terms.

Customer may permit its Authorized Users to access and use the Subscription Services solely on Customer’s behalf and only within the scope of Customer’s purchased subscription.

3. Orders and Plan Scope

Customer may subscribe to the Subscription Services through Kinetically’s online signup or other ordering process. Each Order is incorporated into and governed by these Subscription Terms.

Customer’s rights depend on the subscription plan selected, including any limits relating to:

• number of Authorized Users,
• clinics, locations, or business units,
• patients or patient records,
• storage,
• features,
• integrations,
• support levels,
• usage caps, or
• other plan restrictions shown at checkout or in the Order.

Customer may not exceed purchased limits unless expressly permitted by Kinetically in writing or through the platform.

4. Authorized Users and Account Responsibility

Customer is responsible for:

• all activity occurring under its Account,
• all acts and omissions of its Authorized Users,
• maintaining the confidentiality of login credentials,
• assigning and removing Authorized Users appropriately, and
• ensuring that all Authorized Users comply with these Subscription Terms.

Customer will promptly notify Kinetically of any suspected unauthorized access to or use of the Account.

Customer may not share login credentials among multiple users unless the applicable subscription plan expressly permits shared access.

5. Customer Responsibilities

Customer is responsible for:

• providing any systems, devices, internet connectivity, and third-party software needed to use the Subscription Services;
• obtaining all rights, permissions, notices, and consents necessary for Customer Data and Customer’s use of the Subscription Services;
• using the Subscription Services in compliance with applicable law, professional standards, and payer or documentation requirements;
• independently reviewing all outputs, reports, measurements, and documentation support before relying on them; and
• ensuring that only appropriate data is submitted into the Subscription Services.

Customer is solely responsible for all clinical decisions, patient care decisions, treatment decisions, documentation decisions, coding decisions, billing decisions, and compliance determinations made using or in connection with the Subscription Services.

6. No Medical, Legal, or Reimbursement Advice

The Subscription Services may assist with motion capture, measurement, reporting, progress tracking, patient engagement, and documentation workflows. The Subscription Services do not provide medical advice, diagnosis, treatment, legal advice, coding advice, reimbursement advice, or compliance advice.

Kinetically does not replace the independent judgment of licensed clinicians, providers, or administrators. Customer is solely responsible for verifying the accuracy and appropriateness of any outputs and for all actions taken based on use of the Subscription Services.

7. Acceptable Use

Customer will not, and will not permit any Authorized User or third party to:

• use the Subscription Services in violation of any applicable law or regulation;
• infringe, misappropriate, or violate any third-party right;
• interfere with, disrupt, or damage the Subscription Services or related systems;
• attempt to gain unauthorized access to the Subscription Services or related accounts, systems, or networks;
• introduce malware or other harmful code;
• reverse engineer, decompile, disassemble, or attempt to derive source code, underlying structure, models, or algorithms from the Subscription Services, except to the extent such restrictions are prohibited by law;
• scrape, harvest, or extract data from the Subscription Services except as expressly permitted;
• use the Subscription Services to build or benchmark a competing product or service;
• upload unlawful, defamatory, fraudulent, misleading, or harmful content;
• use the Subscription Services for spam, phishing, deceptive practices, or unauthorized surveillance;
• use the Subscription Services as the sole basis for clinical, diagnostic, reimbursement, coding, legal, or compliance decisions without independent review; or
• exceed subscription scope, usage limits, or other restrictions in the applicable Order.

Kinetically may suspend access for actual or suspected violations of this Section.

8. Fees and Payment

Customer will pay all fees specified in the applicable Order. Except as expressly stated otherwise, all fees are:

• stated in U.S. dollars,
• non-cancelable, and
• non-refundable.

If Customer pays by credit card, ACH, or another electronic payment method, Customer authorizes Kinetically or its payment processor to charge the applicable fees, including recurring subscription fees, renewals, upgrades, overages, applicable taxes, and other amounts due.

If payment is not successfully received when due, Kinetically may:

• charge interest or late fees to the extent permitted by law,
• suspend access to the Subscription Services, and
• terminate the subscription for nonpayment.

9. Taxes

Fees do not include taxes, duties, levies, or similar governmental assessments, including sales, use, value-added, or withholding taxes, except taxes based on Kinetically’s net income. Customer is responsible for all such taxes associated with its purchases, excluding taxes based on Kinetically’s income.

10. Subscription Term and Renewal

The initial Subscription Term begins on the date Customer first receives access to the paid Subscription Services, unless otherwise stated in the applicable Order, and continues for the period selected at checkout.

Unless otherwise stated in the applicable Order, subscriptions automatically renew for successive terms equal to the initial Subscription Term unless either party gives notice of non-renewal before the renewal date or Customer cancels through the account settings or other method Kinetically makes available.

Kinetically may change renewal pricing by providing advance notice before the renewal term begins. Continued use after renewal constitutes acceptance of the renewal term and applicable renewal pricing.

11. Cancellation

Customer may cancel renewal of its subscription at any time through the account settings or by contacting Kinetically at the designated support or billing contact. Unless otherwise stated in the applicable Order, cancellation will take effect at the end of the then-current paid Subscription Term, and Customer will retain access until that term ends.

Customer will not receive a refund for any prepaid fees except where required by law or expressly stated in these Subscription Terms.

12. Suspension

Kinetically may suspend Customer’s or any Authorized User’s access to the Subscription Services immediately if Kinetically reasonably determines that:

• Customer is in material breach of these Subscription Terms;
• Customer has failed to pay amounts due;
• Customer’s use poses a security risk or may harm Kinetically, the Subscription Services, or other customers;
• suspension is necessary to prevent unauthorized access, data loss, or service disruption; or
• suspension is required by law or governmental request.

Where reasonably practicable, Kinetically will provide notice and an opportunity to cure before suspension.

13. Termination

Either party may terminate these Subscription Terms if the other party materially breaches these Subscription Terms and fails to cure the breach within thirty (30) days after written notice, except that Kinetically may terminate immediately for nonpayment, unlawful use, or material security violations.

Kinetically may also terminate these Subscription Terms upon notice if it discontinues the applicable Subscription Services generally.

Upon termination or expiration:

• Customer’s rights to access and use the Subscription Services end,
• Customer must stop using the Subscription Services, and
• Sections that by their nature should survive will survive.

14. Customer Data

As between the parties, Customer retains all right, title, and interest in and to Customer Data.

Customer grants Kinetically a non-exclusive, worldwide, royalty-free right to host, store, process, transmit, reproduce, display, and otherwise use Customer Data as necessary to:

• provide, operate, maintain, secure, and support the Subscription Services;
• prevent fraud, abuse, and security incidents;
• perform backups and disaster recovery;
• comply with law and enforce these Subscription Terms; and
• perform other activities authorized by Customer in writing.

Customer represents and warrants that it has all rights and permissions necessary to provide Customer Data to Kinetically and to allow Kinetically to use Customer Data as described in these Subscription Terms.

15. Usage Data and Product Improvement

Kinetically may collect and use Usage Data to operate, monitor, support, secure, analyze, and improve the Subscription Services and related products and services.

Kinetically may also use aggregated and de-identified data derived from Customer’s use of the Subscription Services for lawful business purposes, including analytics, benchmarking, product improvement, and service development, provided that such data does not identify Customer, any Authorized User, or any individual patient.

16. Privacy and Security

Kinetically will maintain commercially reasonable administrative, technical, and organizational safeguards designed to protect Customer Data against unauthorized access, use, alteration, or disclosure.

Customer acknowledges that no system can be guaranteed completely secure and that Customer shares responsibility for security, including user provisioning, password hygiene, endpoint security, and appropriate use settings.

Customer’s use of the Subscription Services is also subject to Kinetically’s Privacy Policy.

17. HIPAA and Regulated Data

Customer is solely responsible for determining whether Customer’s use of the Subscription Services involves protected health information or other regulated data.

If Customer requires Kinetically to act as a business associate under HIPAA, such obligations will apply only if and when the parties enter into a separate Business Associate Agreement (“BAA”). No BAA is created by these Subscription Terms alone.

Customer will not submit protected health information into portions of the Subscription Services not designated by Kinetically for such use.

18. Support and Service Changes

Kinetically will provide the standard support included with Customer’s subscription plan, if any. Support levels, hours, channels, and response targets may vary by plan.

Kinetically may modify, update, enhance, or discontinue features from time to time, provided that Kinetically will not materially reduce the core functionality of the paid Subscription Services during the current Subscription Term except where required for security, legal, or technical reasons.

19. Third-Party Services

The Subscription Services may interoperate with third-party platforms, devices, systems, or services, including EHR/EMR systems, video tools, cloud hosting providers, analytics tools, communication services, or payment processors.

Kinetically does not control and is not responsible for third-party services. Customer’s use of third-party services is subject to the applicable third-party terms and privacy policies. Kinetically is not responsible for outages, errors, incompatibilities, or data issues caused by third-party services.

20. Intellectual Property

Kinetically and its licensors retain all right, title, and interest in and to the Subscription Services, Documentation, software, technology, workflows, interfaces, designs, reports, templates, and all related intellectual property rights.

Except for the limited rights expressly granted in these Subscription Terms, no rights are granted to Customer.

If Customer provides suggestions, ideas, or feedback regarding the Subscription Services, Kinetically may use that feedback without restriction or obligation.

21. Confidentiality

Each party receiving Confidential Information (“Recipient”) from the other party (“Discloser”) will:

• use the Confidential Information only to perform or exercise its rights under these Subscription Terms,
• protect the Confidential Information using reasonable care, and
• not disclose the Confidential Information to third parties except to employees, contractors, advisors, and service providers who have a need to know and are bound by confidentiality obligations.

“Confidential Information” means non-public information disclosed by one party to the other that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure, including Customer Data, pricing, product roadmaps, technical information, and security materials.

Confidential Information does not include information that:

• is or becomes public through no fault of Recipient,
• was already known to Recipient without confidentiality obligation,
• is independently developed without use of the Confidential Information, or
• is lawfully received from a third party without restriction.

A Recipient may disclose Confidential Information if required by law, subpoena, or court order, provided it gives notice where legally permitted.

22. Disclaimers

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND KINETICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AVAILABILITY, OR THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.

WITHOUT LIMITING THE FOREGOING, KINETICALLY DOES NOT WARRANT THAT:

• THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS;
• ANY OUTPUTS, REPORTS, MEASUREMENTS, INSIGHTS, EXERCISE CONTENT, OR DOCUMENTATION SUPPORT WILL BE ACCURATE, COMPLETE, REIMBURSABLE, COMPLIANT, OR SUFFICIENT FOR ANY PARTICULAR PURPOSE;
• USE OF THE SUBSCRIPTION SERVICES WILL PREVENT CLAIM DENIALS, AUDITS, REGULATORY ISSUES, OR DISPUTES; OR
• ALL ERRORS OR DEFECTS WILL BE CORRECTED.

23. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THESE SUBSCRIPTION TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, KINETICALLY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE SUBSCRIPTION TERMS OR THE SUBSCRIPTION SERVICES WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO KINETICALLY FOR THE SUBSCRIPTION SERVICES DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM.

The exclusions and limitations in this Section do not apply to:

• Customer’s payment obligations,
• Customer’s violation of Kinetically’s intellectual property rights,
• either party’s confidentiality obligations, except to the extent the claim relates solely to a security incident subject to a different cap expressly stated in a signed agreement,
• either party’s gross negligence, willful misconduct, or fraud, or
• liabilities that cannot be limited under applicable law.

24. Indemnification by Customer

Customer will defend, indemnify, and hold harmless Kinetically and its affiliates, officers, directors, employees, and agents from and against any third-party claims, damages, judgments, settlements, fines, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or related to:

• Customer Data,
• Customer’s or its Authorized Users’ use of the Subscription Services in violation of these Subscription Terms or applicable law,
• Customer’s failure to obtain necessary rights, notices, or consents,
• Customer’s clinical, medical, documentation, billing, reimbursement, privacy, or compliance decisions, or
• allegations that Customer Data or Customer’s use of the Subscription Services infringes or violates a third party’s rights.

25. Indemnification by Kinetically

Kinetically will defend Customer against any third-party claim alleging that the Subscription Services, when used by Customer as permitted under these Subscription Terms, infringe a U.S. patent, copyright, or trademark, and Kinetically will pay damages finally awarded or agreed in settlement, provided that Customer:

• promptly notifies Kinetically of the claim,
• gives Kinetically sole control of the defense and settlement, and
• reasonably cooperates at Kinetically’s expense.

Kinetically will have no obligation under this Section for claims arising from:

• Customer Data,
• third-party services,
• modification of the Subscription Services not made by Kinetically,
• use outside the Documentation or permitted scope,
• combinations not provided by Kinetically, or
• continued use after Kinetically has provided a non-infringing alternative.

If such a claim appears likely, Kinetically may:

• modify the Subscription Services,
• obtain the right for Customer to continue using them, or
• terminate the affected Subscription Services and refund prepaid unused fees for the terminated portion.

This Section states Kinetically’s sole liability and Customer’s exclusive remedy for intellectual property infringement claims.

26. Publicity

Kinetically may identify Customer by name and logo as a customer of Kinetically on Kinetically’s website and marketing materials, unless Customer notifies Kinetically in writing that it does not consent.

For enterprise or healthcare customers, you may prefer to remove this clause by default and require written permission instead.

27. Changes to These Subscription Terms

Kinetically may update these Subscription Terms from time to time. If Kinetically makes material changes, Kinetically will provide notice by posting updated terms, email, in-app notice, or another reasonable method.

Changes will become effective on the date stated in the updated version. For renewed or month-to-month subscriptions, continued use after the effective date constitutes acceptance of the revised Subscription Terms. For then-current fixed terms, material changes will generally apply at renewal unless earlier application is required by law, security, or operational necessity.

28. Governing Law

These Subscription Terms are governed by the laws of the State of Delaware, without regard to conflict of laws principles.

29. Dispute Resolution

Any dispute, claim, or controversy arising out of or relating to these Subscription Terms or the Subscription Services will be resolved exclusively in the state or federal courts located in Wilmington, Delaware, and each party consents to personal jurisdiction and venue there.

If you want, I can replace this with an arbitration + class action waiver version, which is often used for online self-serve signup.

30. Miscellaneous

These Subscription Terms, together with the applicable Order, Privacy Policy, and any documents expressly incorporated by reference, constitute the entire agreement between the parties regarding the subject matter here and supersede prior or contemporaneous understandings on that subject.

If there is a conflict between these Subscription Terms and an Order, the Order controls only to the extent of that conflict.

If any provision is held invalid or unenforceable, the remaining provisions will remain in effect.

Customer may not assign these Subscription Terms without Kinetically’s prior written consent, except in connection with a merger, acquisition, or sale of substantially all of Customer’s assets. Kinetically may assign these Subscription Terms without restriction.

No waiver is effective unless in writing. Failure to enforce any provision is not a waiver.

Nothing in these Subscription Terms creates a partnership, agency, fiduciary, or employment relationship between the parties.

31. Contact Information

Kinetically, Inc.
131 Continental Dr, Suite 305
Newark, DE 19713
Email: legal@kinetically.ai
Website: www.kinetically.ai