Terms of Service

The following terms of service (“Terms”) are a legal agreement between you (together with the business entity you represent, if any, “you” or “your”) and Koko Home, Inc. (d/b/a Cairns Health) (“Cairns Health”, “we”, “us” or “our” and together with you, the “Parties”) and govern your access to and use of the Cairns Health suite of health products and services including the Cairns Health website at https://www.cairns.ai/ and the Cairns Health mobile application (together, the “Platform”) and the provision of Cairns Health hardware devices (each, a “Device”) and any related services provided by us (collectively, the “Services”). 

Cairns Health Services are designed to enable you to track, manage, and share your health information. The Services are provided solely as a passive monitoring, support and communication tool. You should consult your healthcare provider prior to using the Services if you have any existing physical, mental or other health conditions. The Services may not be a good fit for you, or may even be unsafe, if you have certain sleep disorders, certain mental health disorders, suffer from seizures, are employed based on a rotating shift schedule, suffer from severe memory problems. Please contact your healthcare provider before accepting these Terms and commencing your use any Service.

By accessing or using any Services, you agree to these Terms and any other policies or terms referenced herein, posted on our website, including our Privacy Policy (“Privacy Policy”) or otherwise or notified to you within any Service and such other policies, guidelines, rules or additional terms as we make available to you from time to time in connection with the Services, the terms of each of which are hereby expressly incorporated into these Terms by reference.

From time to time, we may update or modify these Terms in our discretion. If our changes reduce your rights or increase your responsibilities, we will use commercially reasonable efforts to provide you with notice within the Platform or by other means. The updated Terms will become effective as of the “Last Updated” date indicated in the terms. Any use of the Services after the last updated date means you have accepted the updated Terms. Your sole and exclusive remedy in the event you do not accept the updated terms is to terminate your account and cease use of the services. If you created an Account on the Platform before the date above, these Terms are effective thirty (30) days after the date above. For everyone else, these Terms are effective as of the date above.

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND CAIRNS HEALTH ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT, AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN SECTION 19 OF THESE TERMS

1. ELIGIBILITY. The Services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable laws, rules and regulations. Individuals between the ages of 13 and 18 can use the Services only under the supervision of a parent or legal guardian, in which case such parent or legal guardian is the user to whom these Terms apply (in each case, a “User”) and is responsible for any and all activities of the minor. Individuals under age 13 may not use the Services. If we suspend or terminate your Account or access to any Service, you may not use any Services, whether under a different Account or by re-registering for a new Account without our prior consent.
2. USE OF SERVICES.
   
   1. Beta Service. You acknowledge that the Services are in beta, pre-release form, and as such will contain bugs, may not operate consistently or perform all intended functions, and may cause errors, data loss or other problems. You hereby assume all risks associated with the use of the Services and reliance on any data, information or recommendations provided or received through the Services. The Services are made available in beta, pre-release form for such time period as Cairns Health may elect in its sole discretion, and such availability may end at any time and without notice.
   2. Modification and Suspension of Services. We may change and update our Services at any time. We may add or remove features including without limitation making free Services paid Services and vice versa. We will endeavor to give you appropriate advance notice about any major changes, although you understand that we may stop, suspend or change our Services at any time without prior notice. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
   3. Telecommunications. You alone are responsible for ensuring and maintaining that you are able to access and use the Services, including by securing your own internet access, mobile phone and other necessary hardware and software. Unless otherwise expressly agreed in writing by Cairns Health, we are not responsible any charges you incur from your internet provider or otherwise as a result of use of our Services. You are responsible for complying with the terms and conditions of your internet provider or other services provider utilized by you in connection  with our Services. 
3. ACCOUNTS. In order to use certain Services, you must establish a user account (an “Account”). In connection with establishing or maintaining an Account, you agree to: (a) provide true, accurate, current, and complete information about yourself as we may require; and (b) maintain and promptly update the registration data to keep it true, accurate, current, and complete. Please refer to our Privacy Policy for additional information on our practices for handling personally identifiable information. You may not share your Account and you are responsible for maintaining the confidentiality of your login credentials and for all activities that occur under your Account. You agree to notify us immediately of any actual or suspected unauthorized use of or access to your Account. We are not liable for any acts or omissions by you in connection with your Account or any damages arising from your failure to comply with this Section 3. We reserve the right, in our sole discretion, to determine who may qualify for an Account and we reserve the right to reject or revoke any Account at any time without liability.
4. GENERAL LICENSE. Subject to your compliance with these Terms, Cairns Health hereby grants to you: (a) a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free, right to access and use the Platform, including via any Device leased to you; and (b) a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free, right and license to access and use any other applicable Services, in each case of (a) and (b) in accordance with these Terms and all applicable laws. Any other use of the Services is strictly prohibited. Nothing contained on any Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Service or any of our Content except as expressly permitted by these Terms or with our prior written permission or the written permission of the third party that may own the Content displayed on the Platform.
5. PROHIBITED CONDUCT; RESTRICTIONS. As a condition of the licenses granted to you hereunder and rights to use the Services, including any Device, you agree that you will not, directly or indirectly:
   
   1. use any Services in order to generate an alternative thereto, including by using or submitting any Services or Content with or to any artificial intelligence system (including generative artificial intelligence or large language model), machine learning, or similar system;
   2. pledge, rent, lease, share, distribute or sell any Services;
   3. reverse engineer or otherwise attempt to determine the underlying code or structure of any Services including any software embedded on a Device (“Embedded Software”) or disassemble or physically tamper with any Device;
   4. frame, mirror, or otherwise simulate the appearance or function of the Platform or any other Services, our Content or the Content of any other User, or otherwise manipulate identifiers in order to disguise the origin of any Content made available via the Services;
   5. use any robots, spiders, or similar data mining, data gathering, “scraping”, extraction tools, or manual processes to collect, gather, or copy any content or data on or related to any Services;
   6. use the Services for any fraudulent purpose or in violation of any applicable laws;
   7. impersonate any person or entity, including any of our employees or representatives or users, or falsely state or otherwise misrepresent your affiliation with a person or entity;
   8. remove any copyright, trademark, or other proprietary rights notices contained in or on the Services, our Content, or any works other than your own;
   9. copy, modify, reproduce, duplicate, republish, post, transmit, sell, distribute, create derivative works of or otherwise use any Content made available by any other User without the prior consent of the applicable rights holder unless such Content is specifically made available via the Platform for any such use;
   10. interfere or attempt to interfere with the proper working of the Platform or any activities conducted through them, including by bypassing any measures we may use to prevent or restrict access to the Platform or engaging in any conduct that restricts or inhibits any other user’s use or enjoyment of the Platform; or
   11. link to any page on the Cairns Health website without our prior written permission;
   12. use the Platform to transmit any Content that:
       
       1. is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, hateful, fraudulent, invasive of another’s privacy, tortious, discriminatory, obscene, pornographic, lewd, lascivious or otherwise objectionable, as may be determined by us;
       2. is false, inaccurate, misleading, defamatory or libelous Content (including without limitation personal information);
       3. infringes another’s copyright, trademark, trade secret or other intellectual property rights or other rights, including rights of privacy, of any entity or person; or
       4. introduces viruses, worms, Trojan horses and/or harmful code into the Platform.
6. DEVICE LOCATION FUNCTIONALITY. 
   
   1. The Services may provide features that enable Cairns Health to tailor your experience based on the Device’s location. In order to use Location-based Services, you must allow Cairns Health access to your localized position, which Cairns Health may access through a variety of means, including, if available, GPS, IP address, cellular tower, and/or other location identifiers now known or later developed, none of which are transmitted to Cairns Health by the Device. If you choose to disable Location-based services on your Device, you will not be able to utilize certain features of the Services. 
   2. You agree and acknowledge that: (i) Cairns Health may collect device data from your Device, none of which contains personally identifiable information, in connection with the Services and your use of the App; and (ii) if enabled, your Device may provide Location-based Services related to your then-current location for the duration of your session. You acknowledge and agree that Cairns Health does not guarantee the accuracy of any location information, and your use of any Location-based Services is at your sole risk.
7. ACKNOWLEDGEMENT FOR YOU TO RECEIVE COMMUNICATIONS. You hereby agree: (i) to receive communications, including emails, text messages, push notifications, mail and telephone calls, that are related to our Services; that any communications from us may also include marketing materials from us or from third parties; and that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements. You may opt out from receiving our communications by emailing support@cairns.ai or selecting to unsubscribe as may be provided in the applicable correspondence. In addition, we may allow you to opt in to receive certain communications regarding certain Account activity (any such settings, “Notification Settings”). You may change any Notification Settings through your Account at any time.
8. CONTENT. The Services include certain images, text, data or other materials (collectively, “Content”) created by us and the Platform enables you and other users of the Services to upload, transmit, submit or otherwise include or make available on the Platform their own Content. We and our licensors retain ownership of our Content, and you retain ownership of your Content. Subject to these Terms, we hereby grant you a limited, personal, non-transferable, non-exclusive, non-sublicensable, revocable license to access and use our Content, solely for your personal, non-commercial use and not for any resale, distribution, re-publication or commercial purposes. You hereby grant to us a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid up license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, publicly display, and otherwise use your Content to provide the Services to you and facilitate the provision of Services to other Users, for the purposes set forth in our Privacy Policy and as otherwise permitted by these Terms, and you understand that we may allow any third party to access and use your Content. You are solely responsible for all of your Content. You represent and warrant that: (a) you own or have valid licenses to your Content and have all rights that are necessary to grant us the license rights in your Content under these Terms; and (b) that neither your Content, nor our use of your Content in accordance with these Terms, will infringe, misappropriate, or violate any third party’s intellectual property rights, or any rights of publicity or privacy, or will result in the violation of any applicable law or regulation.
9. REMOVAL; NO ENDORSEMENT. We have the right, in our sole discretion, to remove any of your Content at any time for any reason including if your Content violates these Terms or any applicable law, as determined by us. You acknowledge and agree that by using the Platform, you may be exposed to Content of other Users that is offensive, indecent, inaccurate, misleading or otherwise objectionable and such Content may contain typographical or other inadvertent errors or inaccuracies. We are not responsible for the Content of other Users and do not endorse any such Content made available via the Platform. Further, while Cairns Health uses reasonable efforts to ensure that Content we provide is complete, accurate, and current Content made available on the Platform may occasionally be inaccurate, incomplete, or out of date and Cairns Health makes no representation as to the completeness, accuracy, reliability, validity, truthfulness or currency of any information on our website. You are solely responsible for verifying such Content and for your reliance on any such Content. To report any inappropriate Content, please contact our support team via email at [email address].
10. THIRD PARTY SERVICES. You acknowledge and agree that the Services may contain or be accompanied by, or provide links to software products, websites or other services operated, licensed or provided by third parties (“Third-Party Services”). Cairns Health is not responsible for the operation or availability of any Third-Party Service or operation or availability of the Services, to the extent the Services rely on a Third-Party Service. You are solely responsible for procuring any and all rights necessary to access or use any Third-Party Service and you agree to comply with all applicable terms governing use of Third-Party Services. We make no representations or warranties with respect to Third-Party Services or any third-party service providers. Any exchange of data or other interaction between you and the provider of a Third-Party Service is solely between you and such third party and is governed by such third party’s applicable terms and conditions.
11. ADDITIONAL DEVICE TERMS.
    
    1. Devices. Cairns Health hereby leases to you, during the applicable Subscription Term, the Device set forth in each applicable Order. Title to all Embedded Software and intellectual property rights in the Devices shall remain the sole and exclusive property of Cairns Health and its licensors, and you shall not take any action inconsistent with such title and ownership. Except as may be otherwise agreed by Cairns Health, you are responsible for installation and use of each Device.
    2. Lease of Devices. It is your and Cairns Health’s express intent that each Order for a Device constitutes a true lease and not a sale of the Devices. All references to a purchase or sale of any Device in these Terms, an Order or other agreement between you and Cairns Health shall be deemed to be references to a lease, and at all times during any Subscription Term, full legal title to all Devices under the applicable Order will remain vested in Cairns Health to the exclusion of you, notwithstanding your possession and use thereof. Notwithstanding the foregoing, in the event that the lease of any Device is recharacterized by any third party as a sale, then solely in that event and for the expressly limited purposes thereof, you hereby grant to Cairns Health a security interest in all of such your now or hereafter existing right, title and interest to, and under such Device and agree that these Terms shall constitute a security agreement under applicable law. Subject to the foregoing sentence, in no event are you permitted to, directly or indirectly, give or allow another person to give any interest in or lien over any Device. You hereby authorize Cairns Health or our designee to file one or more financing or continuation statements, and amendments thereto and assignments thereof, relative to all or any of your rights in the Device now existing or hereafter arising in your name.
    3. Delivery and Return. When you enter into an Order, the Device will be shipped to the postal address designated by you in the Order. Risk of loss for items ordered from Cairns Health will pass to you upon delivery of the items to Cairns Health’s common carrier until you return it to us. You are responsible for filing any claims with carriers for damaged or lost shipments, without limiting the warranty commitments set forth below. You assumes and will bear the entire risk of loss for theft, damage, destruction or other injury to such Device from any cause whatsoever. No loss or damage shall reduce your obligations under the applicable Order which shall continue in full force and effect. Within thirty (30) days following the expiration or termination of the Subscription Term, you must return the Device, in its original condition without damage, to Cairns Health using the return label provided by Cairns Health to you. In the event that you fail to return the Device to Cairns Health in accordance with this Section 11(c), Cairns Health may invoice you for the replacement cost of the Device in accordance with our then-current device pricing.
    4. Remote Diagnostics. You agree that the Device has remote connectivity enabled in order to: (i) transmit to Cairns Health technical and related information, including Usage Data in accordance with Section 15(b) about your use of the Device which may include, without limitation, system performance, capacity usage, hardware faults, internet protocol address, hardware identification, operating system, application software, peripheral hardware, and other non-personally identifiable Device usage statistics that we may use to troubleshoot Device issues; and (ii) facilitate the provisioning of updates, upgrades, support, invoicing or online services (including the provision of notices from Cairns Health to you via the Device), and to enhance, improve, and develop current and future Cairns Health products and services. Such transmissions and/or notices may be on a daily or other periodic basis, or upon a failure or crash of the Device.
    5. Automatic Software Updates. Cairns Health may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or otherwise modify the performance of the Device and related services (“Updates”). These Updates may affect or erase data on the Device or change or reset settings on the Device. These Updates may be automatically installed without providing any additional notice or receiving any additional consent if you have connected the Device to the Internet. You consent to these automatic Updates. If you do not want these Updates, do not connect the Device to the Internet or to a mobile device. You acknowledge that it may be necessary to install Updates in order for the Device (or any component thereof) to operate properly and to access all updated features of the Device. In certain circumstances you may be entitled to request removal or disabling of Updates; however, Cairns Health is not responsible for the operation of, providing support to, Devices that do not contain Updates.
12. FEES AND PAYMENT TERMS
    
    1. Fees. Certain of the Services may be made available to you at no charge. Any Subscription fees will be set forth in an ordering form referencing these Terms (each, an “Order”) and displayed when you are asked to confirm registration for or subscription to any paid Services. By using the Platform, you agree to pay all applicable Service Fees and other amounts agreed upon in an Order or via the Platform (collectively, “Service Fees”). 
    2. Payment Terms. We may use a third party payment service to bill you through an online account for the Service Fees in lieu of directly processing your credit card information. By submitting your payment account information, you grant us the right to store and process your information with the third party payment service, which may change from time to time; you agree that we will not be responsible for any failure of the third party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to these Terms. You agree that we may change the third party payment service and move your information to other service providers that encrypt your information using transport layer security (TLS) or comparable security technology. Other than as may be expressly set forth in an Order, we have no obligation to provide refunds or credits, but may grant them in certain circumstances in our sole discretion.
    3. Taxes. You shall pay all applicable sales (unless an exemption certificate is furnished by you to Cairns Health), use and value-added taxes (but not taxes imposed on Cairns Health’s net income) with respect to this Agreement or furnish Cairns Health with evidence acceptable to the taxing authority to sustain an exemption therefrom. All payments under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires to withhold.
13. DISCLAIMERS.
    
    1. Cairns Health Disclaimers. YOUR USE OF THE WEBSITE, APP, DEVICES, CAIRNS HEALTH PLATFORM, SERVICES, AND ANY SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CAIRNS HEALTH PLATFORM, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CAIRNS HEALTH, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND TITLE. YOUR USE OF THE WEBSITE, APP, DEVICES, CAIRNS HEALTH PLATFORM, SERVICES AND ANY OTHER CAIRNS HEALTH PRODUCTS IS AT YOUR OWN RISK. 
    2. No Medical Advice. The Services and any results or content displayed via the Services, whether provided by Cairns Health or third parties, are for informational purposes only and do not provide medical advice and are not intended to be a substitute for (i) advice from your doctor or other medical professionals, or any diagnosis or treatment or (ii) a visit, call or consultation with your doctor or other medical professionals. The Device is not a medical device and the Services are not intended to diagnose, treat, cure, or prevent any disease or medical condition.
14. CONFIDENTIALITY.
    
    1. Confidential Information. “Confidential Information” means any and all non-public information disclosed by Cairns Health to you in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Cairns Health identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (iii) proprietary or confidential information of any third party who may disclose such information to Cairns Health or you in the course of Cairns Health’s business; and (iv) the terms of this Agreement and any Orders. Confidential Information of Cairns Health shall include the Cairns Health Platform and Services. Confidential Information also includes all summaries and abstracts of Confidential Information.
    2. Non-Disclosure. You acknowledge that in the course of the performance of this Agreement, you may obtain the Confidential Information of Cairns Health. You shall, at all times, both during the Term and thereafter, keep in confidence and trust all of Cairns Health’s Confidential Information received by it. You shall not use the Confidential Information of Cairns Health other than as necessary to fulfill your obligations or to exercise your rights under these Terms. You agree to secure and protect our Confidential Information using no less than reasonable care, and disclose or make available our Confidential Information only to those of your employees or other personnel with a need to know such Confidential Information for the purposes of your performance under these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
    3. Exceptions to Confidential Information. The obligations set forth in Section 14(b) shall not apply to information which: (i) was known by you prior to receipt from Cairns Health or received from a third party without an obligation of confidentiality to Cairns Health; (ii) was developed by you without use of or reference to our Confidential Information; or (iii) becomes generally available to the public other than as a result of a breach of these Terms or any obligation of confidentiality by you or on your behalf. Nothing in this Agreement shall prevent you from disclosing Confidential Information to the extent you are legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, you shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify Cairns Health in writing of the agency’s order or request to disclose; and (iii) cooperate fully with Cairns Health in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
15. PROPRIETARY RIGHTS.
    
    1. Ownership. The Platform and applicable Services are licensed to you, not sold. As between you and Cairns Health, Cairns Health and our licensors retain all right, title, and interest in and to the Services and intellectual property and other rights therein and thereto. No rights or licenses are granted except as expressly and unambiguously set forth in these Terms, whether by implication, estoppel or otherwise. Cairns Health acknowledges that your Content, and all intellectual property rights therein, is your sole and exclusive property. Each of you and Cairns Health retain all other rights not expressly granted in this Agreement.
    2. Usage Data. You agree that Cairns Health may collect and use technical and usage data and related information collected via the Device and relating to your use of the Services (but that does not include your Content), including, but not limited to, technical information about the Device and ancillary information collected by the device such as radar, sound, temperature, humidity, light, vibration, air quality and pressure and other external information, system and application software, and peripherals, that is gathered periodically to facilitate the provision of the Services (“Usage Data”). Cairns Health may use Usage Data for a variety of purposes as set forth in these Terms and the Privacy Policy. You agree that we may de-identify, anonymize and/or aggregate Usage Data including in combination with the aggregate or de-identified content of other users of the Services solely in a manner such that the aggregate or de-identified content or data does not identify you (“Aggregated Data”). As between you and Cairns Health, Aggregated Data is the sole and exclusive property of Cairns Health and we may use it for any purpose.
    3. Limited Feedback License. You hereby grant to Cairns Health, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your intellectual property rights in and to suggestions, comments and other forms of feedback regarding the Services (“Feedback”). We may freely use Feedback for any lawful purpose, even if it is information you have otherwise designated as confidential, and you hereby grant to Cairns Health a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Without limiting the foregoing, we acknowledge and agree that Feedback is provided “as is” without warranty of any kind.
16. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CAIRNS HEALTH OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS: (a) FOR ERRORS OR INTERRUPTION OF USE, ANY LOST PROFITS, LOST REVENUE, DATA LOSS, LOST BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING AND EVEN IF CAIRNS HEALTH OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (b) FOR ANY MATTER BEYOND THE REASONABLE CONTROL OR CAIRNS HEALTH; OR (c) FOR ANY DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE GREATER OF (i) THE AGGREGATE SERVICE FEES PAID OR PAYABLE BY YOU TO CAIRNS HEALTH HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT FIRST GIVING RISE TO A CLAIM; AND (ii) ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, AND OTHERWISE THE LIMITATIONS IN THIS SECTION 16 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
17. INDEMNIFICATION. You agree to indemnify, defend, and hold Cairns Health, our Affiliates, and our and their respective contractors, employees, agents, suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including reasonable attorneys’ and fees and expenses, arising from or in connection with a claim, suit, action or other proceeding brought against one or more of them arising from or in connection with your use of the Services other than in accordance with these Terms, your communications, transactions, or dealings with third parties initiated through the Services, your violation of these Terms or any applicable law or regulation, or any breach of the representations, warranties, and covenants made by you in these Terms. Cairns Health reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Cairns Health, and you agree to cooperate with Cairns Health’s defense of these claims. Cairns Health will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. “Affiliate” means any corporation or entity, which is owned or controlled by or under common control with a party. For purposes of this definition, “control” shall mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.
18. SUBSCRIPTIONS; TERM AND TERMINATION.
    
    1. Subscription Term. Paid or trial Services are made available to you pursuant to an Order for such Services (a “Subscription”). You’re the term of your Subscription is as set forth in the applicable Order (the “Subscription Term”). Your Subscription Term will automatically renew for subsequent terms equal in length to the initial Subscription Term in your Order unless and until your Subscription is cancelled by you, or terminated by us. You may cancel your subscription at any time up to ten (10) days prior to the end of your current Subscription Term via your Account services on the Platform. When you cancel a Subscription, you will continue to have full access to the Services until the end of that current Subscription Term. You will not be eligible for a prorated refund of any portion of the Service Fees paid or payable for the current Subscription Term.
    2. Termination. You may terminate these Terms at any time upon thirty (30) days’ prior notice to Cairns Health via the Platform or [email address]. You will not be eligible for a prorated refund of any portion of the Service Fees paid or payable for the current Subscription Term. We have the right to terminate these terms: (i) for any or no reason upon thirty (30) days' prior notice to you; (ii) immediately in the event that you materially breach these Terms (other than non-payment of Service Fees); or (iii) for non-payment of Service Fees. Notwithstanding anything to the contrary, we reserves the right, in our sole discretion, with or without notice, at any time and for any reason, to remove, modify, suspend, or disable access to all or any portion of the Services.
    3. Effects of Termination. Upon expiration or termination of these Terms or your Subscription: (i) all rights and licenses granted hereunder shall cease; (ii) all Subscriptions shall terminate; (iii) all Service Fees and other amounts owed hereunder shall be immediately due and payable. In addition, within ten (10) days after the effective date of termination you shall return to Cairns Health or at Cairns Health’s option, destroy all items of Confidential Information then in your possession or control, including any copies, extracts or portions thereof and upon our request certify in writing such destruction. Following such ten (10)-day period, Cairns Health shall have no obligation to maintain or provide any of your Content and may thereafter in its sole discretion unless legally prohibited, delete all of your Content in our systems or otherwise in our possession or control; and (iv) within thirty (30) days following any such expiration or termination of the Subscription or these Terms, you will return the Device, in its original condition without damage, to Cairns Health using the return label provided by Cairns Health to you. You will be responsible for the cost of repairing any returned Device to its original condition (other than for ordinary wear and tear).
    4. Survival. Sections 5 (Prohibited Conduct; Restrictions), 6(b) (Device Location Functionality), 7 (Acknowledgement for You to Receive Communications), 8 (Content), 10 (Third Party Services), 11(b)-(d) (Additional Device Terms), 12 (Fees and Payment Terms), 13 (Disclaimers), 14 (Confidentiality), 15 (Proprietary Rights), 16 (Limitation of Liability), 17 (Indemnification) 18(c) (Effects of Termination), this 18(d) (Survival) 19 (Agreement to Arbitrate; Class Action Waiver) and 20 (Miscellaneous), as well as any accrued obligations, shall survive any termination or expiration of this Agreement.
19. AGREEMENT TO ARBITRATE; CLASS ACTION WAIVER.
    
    1. Mandatory Arbitration of Disputes; Arbitration Procedures. Except if you opt-out, you agree that all disputes between you and Cairns Health (whether or not such dispute involves a third party) arising out of or relating to these Terms, including without limitation the Platform and other Services, and Privacy Policy, shall be finally resolved by arbitration before a single arbitrator conducted in the English language in San Francisco County, California, USA, and with a seat in such location, under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). You and Cairns Health shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and Cairns Health cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.
    2. Class Action Waiver. Any claims brought by you or Cairns Health must be brought in such party’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You agree and acknowledge that neither you nor Cairns Health will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or the Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You understand and agree that you may bring claims only on your own behalf.
    3. Opt-Out. You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify Cairns Health in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your Account to which the opt-out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: 
       
       Koko Home, Inc. (d/b/a Cairns Health)., ATTN: Arbitration Opt-Out, [email address], with a copy to: Cairns Health ATTN: Arbitration Out-Out, 11811 San Vicente Boulevard, Los Angeles, CA 90049.
       ‍

4. Effect of Changes on Arbitration. Notwithstanding any provision in these Terms to the contrary, you and Cairns Health agree that if Cairns Health make any change to the arbitration procedures (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Cairns Health prior to the effective date of the change. Moreover, if Cairns Health seek to terminate the arbitration procedures set forth in this Section 19 from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to the Platform and shall not be effective as to any claim that was filed in a legal proceeding against Cairns Health prior to the effective date of removal.
5. Exceptions. Notwithstanding anything to the contrary in these Terms, you and Cairns Health shall each be entitled, in addition to any other remedies available at law or in equity, to seek in any court of competent jurisdiction injunctive relief (including temporary, preliminary, and permanent injunctions) and specific performance to prevent or curtail any breach of these Terms for which a delay in relief may cause irreparable harm, without the necessity of posting a bond or proving actual damages.
6. Survival. In accordance with the survival provision of Section 18(d), this Section 19 shall survive the termination of your relationship with Cairns Health.

20. MISCELLANEOUS.
    
    1. Notices. All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) registered or certified mail, postage prepaid, return receipt requested; (c) reputable overnight delivery service or (d) email. Notices shall be sent to Cairns Health at the appropriate party at the address provided in the applicable Order.
    2. No Waiver. Failure by us to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
    3. Notice for California Users. Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.D.
    4. Notice to Apple Users. If you are accessing our Platform via our iOS device mobile application, the terms of this Section 20(d) apply. You acknowledge that these Terms are between you and Cairns Health only, not with Apple, and Apple is not responsible for the Platform. Apple has no obligation to furnish any maintenance or support services with respect to the Platform. If the Platform 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; to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Platform. Apple is not responsible for addressing any claim by you or any third party relating to the Platform or your possession or use of the Platform, including: (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, or discharge of any third-party claim that the Platform or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Platform. Apple and Apple’s subsidiaries are third party beneficiaries of this Section 20(d), and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 20(d)against you. 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 is on Title 15, Part 740 Supplement 1, Country Group E of the U.S. Code of Federal Regulations; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
    5. Use of Your Name. If you do not wish to be identified as a customer of Cairns Health, you may send an email to customer support (support@cairns.ai) to request to be removed from publicly available customer lists and Cairns Health will remove you from such list.
    6. Severability. The provisions of these Terms are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision of the provisions are found to be partially or wholly invalid, illegal or unenforceable, such provisions shall be modified or restricted to the extent and in the manner necessary to render them valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by Cairns Health, or alternatively, by disposition of a court of law or arbitrator. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from these Terms without affecting the validity, legality or enforceability of any of the remaining provisions.
    7. Governing Law. Subject to Section 19, these Terms, and any dispute between you and us, shall be governed by the laws of the State of California without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction.
    8. Limitation on Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
    9. Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
    10. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; the Covid-19 pandemic or any other epidemic or pandemic or outbreak of infectious disease; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement), including in response to the Covid-19 pandemic, any other epidemic or pandemic or outbreak of infectious disease; or any other event beyond the reasonable control of the Party whose performance is to be excused.
    11. Assignment. The rights and licenses granted by us are personal to you and you may not assign these Terms or your rights or obligations under these Terms, whether voluntarily or by operation of law or otherwise, without our prior written consent and any attempted assignment without consent shall be void. Subject to the foregoing restrictions, these Terms will be binding upon your permitted assigns. 
    12. Entire Agreement. This Agreement, including all Orders, the Cairns Health Privacy Policy, Cairns Health Data Collection Policy and the Cairns Health Mobile Privacy Policy (as may be amended from time to time), constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
    13. Export. The Device, Services and Cairns Health Platform utilize software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Services shall not be used, and neither the Device nor any of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Cairns Health and its licensors make no representation that the Services are appropriate or available for use in other locations. 

Additional Assistance. If you do not understand any of the foregoing Terms or if you have any questions or comments, please contact Cairns Health at support@cairns.ai.