Member App - Terms and Conditions

These Terms and Conditions (the "Terms") will govern your access to and use of Kinetik's Member App (the "Member App") and any and all related software, documentation, and online, mobile-enabled, and/or digital services provided by Kinetik Healthcare Solutions, Inc. (hereinafter "Kinetik", "we", "our", and "us") (collectively, the "Services").

The term "you", "your" or "User(s)" shall refer to any entity or person that accesses, views, uses our Services, and/or starts an account with us.

These Terms are important and affect your legal rights, so please read them carefully. Note that these Terms contain a mandatory arbitration provision in the “Arbitration Section” and a class action/jury trial waiver provision in the “Class Action Waiver” Section that require, unless you opt out pursuant to the instructions in the arbitration agreement, the exclusive use of final and binding arbitration on an individual basis to resolve disputes between you and us, including any claims that arose or were asserted before you agreed to these Terms, and limits the remedies available to you in the event of certain disputes. To the fullest extent permitted by applicable law (as defined below), you expressly waive your right to seek relief in a court of law and to have a jury trial on your claims, as well as your right to participate as a plaintiff or class member in any class, collective, private attorney general, or representative action or proceeding.

The Kinetik Member App is offered to you conditioned on your acceptance without modification of the Terms contained herein. Certain features, services or tools of the Kinetik Member App may be subject to additional guidelines, terms, or rules, which will be posted with those features and are a part of these Terms. Your use of the Services constitutes your agreement to all such Terms. Please read these terms carefully and keep a copy of them for your reference.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING, USING, OR CREATING AN ACCOUNT ON THE MEMBER APP, OR, OR BY CLICKING A BUTTON OR CHECKING A BOX MARKED “I AGREE” (OR SOMETHING SIMILAR),CONSUMMATING A TRANSACTION VIA THE MEMBER APP, YOU ARE AFFIRMING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE MEMBER APP. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE MEMBER APP AND MAY NOT ACCESS OR USE THE MEMBER APP OR SERVICES.

We reserve the right to modify these Terms, and we will provide notice of material changes as described below.

PRIVACY

Your use of the Services is subject to the Kinetik Privacy Policy. Please review our Privacy Policy, which also governs the Services and informs Users of our data collection practices.

USE OF OUR SERVICES

Kinetik’s Member App has been developed with the intention to provide convenient and accessible transportation services for individuals who require non-emergency medical transportation (NEMT). It is specifically designed to enhance the overall experience and accessibility of NEMT services for members. The main purpose of the Kinetik Member App is to empower and grant autonomy to the members, putting control and freedom directly in their hands.

The Kinetik Member App aims to streamline the process of arranging and managing non-emergency medical transportation for patients, providing convenience, transparency, and improved communication among members, healthcare providers, health plan managers, and transportation service providers.

This is a contract between you and Kinetik. You may use the Member App and Services only if you can form a legally binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”).

By becoming a User, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a person under the age of 18, you may create an Account for such minor to use the Member App and Services. If you are a parent or legal guardian, and you allow such minor to use the Member App and Services, then these Terms apply to you and you are responsible for such minor’s activity on the Member App. By creating an Account for such minor, you hereby give permission and consent to the Terms on the minor’s behalf, you expressly guarantee the minor’s acceptance, and your own acceptance, of the Terms, and you shall assume any and all responsibility and liability for the minor’s use of the Member App and Services as provided by the Terms and any applicable supplemental terms. Furthermore, you hereby represent that you are fully authorized to execute these Terms on behalf of yourself and all other parents or legal guardians of the minor User. If you are under the age to obtain an Account, you must have your parent or legal guardian’s permission to use the Member App and Services and accept any additional terms required in connection with your access and use of the Services as a minor. Please have your parent or legal guardian read these additional terms with you.

REGISTRATION, ACCOUNT, AND COMMUNICATION PREFERENCES

In order to access and use certain areas or features of the Member App, you will need to have an account with us (“Account”). By creating an Account, you agree to (i) provide accurate, current and complete account information about yourself as necessary, (ii) maintain and promptly update from time to time as necessary your Account information, (iii) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breaches related to your Account. In creating an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, false, or misleading. You acknowledge that, notwithstanding anything to the contrary herein, you do not own your Account, nor do you possess any rights to data stored by or on behalf of Kinetik on the servers running the Services. We may maintain different types of Accounts for different types of Users.

An individual may access and/or use the Service on behalf of a User, such as that User’s parent, spouse, caregiver, in-home healthcare worker, or nursing home personnel (“User Representative”). In such cases, notwithstanding anything to the contrary herein: (a) these Terms are an agreement between (i) us and such User and (ii) us and that User Representative; (b) “you,” as used in these Terms in the context of a license grant, assignment, restriction, obligation, acknowledgment, representation, warranty, or covenant, or in any similar context, means (i) such User and (ii) the User Representative when accessing or using the Service on behalf of the User; and (iii) “your” has the corresponding meanings; (c) the User Representative’s access and use of the Service shall be subject to these Terms; (d) such User Representative's right to access and use the Services may be suspended or terminated in accordance with these Terms; and (e) the User will be responsible and liable for all acts and omissions of the User Representative, and any act or omission by the User Representative that would constitute a breach of these Terms had it been taken by the User will be deemed a breach of these Terms by that User.

1. Communication Preferences: By creating an Account, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Kinetik Member App). These communications may include notices about your Account (e.g., password changes, updates, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
2. Account Access and Security: If you use the Kinetik Member App and the Services, you are responsible for maintaining the confidentiality of your account and password for restricting access to your computer or mobile device, and you agree to accept responsibility for all activities that occur under your Account or password. You may not assign or otherwise transfer your Account to any other person or entity, but you may allow User Representatives to use and access your Account on your behalf. You acknowledge that we are not responsible for unauthorized or third party access to your Account, including any that result from theft or misappropriation of your Account. We reserve the right, at any time, and for any or no reason, to change, stop providing, refuse or cancel the Services, terminate Accounts, or remove or edit content from the Kinetik Member App, including if in our opinion, you have failed to comply with any of the provisions of these Terms.

AVAILABILITY OF THE KINETIK MEMBER APP AND THE SERVICES

We shall use commercially reasonable efforts to ensure the availability of the Kinetik Member App and the Services, except that we shall not be liable for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond our reasonable control, including without limitation, (i) a force majeure event; (ii) Internet service provider, web hosting, cloud computing platform, or public telecommunications network failures or delays, or denial of service attacks; (iii) a fault or failure of your computer systems or networks; or (iv) any breach of these Terms by you.

PROHIBITED USES

Use of the Member App is limited to the permitted uses expressly authorized by us. The Member App and Services shall not be used in any way that:

1. Harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights).
2. Is unlawful, fraudulent, or deceptive.
3. Uses technology or other means to access unauthorized content or non-public spaces.
4. Uses or launches any automated system or process, including without limitation, "bots," "spiders," or "crawlers," to access unauthorized content or non-public spaces.
5. Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.
6. Attempts to disassemble, reverse engineer, decode, or decompile any part of the Member App or Services.
7. Attempts to buy, sell or transfer API keys without our prior written consent in each case.
8. Attempts to copy, rent, lease, sell, loan, transfer, assign, license or purport to sublicense, resell, distribute, modify, alter, or create derivative works of any part of the Services or any of our intellectual property (as defined below), including, without limitation by any automated or non-automated “scraping”.
9. Attempts to damage, disable, overburden, or impair our servers or networks or otherwise use the Services in any manner that impacts (i) the stability of the servers running the Services, (ii) the operation or performance of the Services or any User’s use of the Services, or (iii) the behavior of other applications that use the Services.
10. Attempts to gain unauthorized access to Kinetik's computer network.
11. Attempts to gain unauthorized access to Kinetik's user accounts.
12. Uses false or inaccurate Kinetik's user accounts.
13. Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability.
14. Violates these Terms in any manner.
15. Fails to comply with applicable third-party terms and conditions or other third-party policies.
16. Uses or displays the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Services, or otherwise to our detriment or disadvantage.
17. Engages in activity or uses the Member App in a way that is or may be obscene, libelous, hateful or discriminatory, illegal, harmful or in violation of a third party’s rights.
18. Impersonates another person or entity, misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Service for any invasive or fraudulent purpose.
19. Collects or harvests any personal information, including Users’ names, from the Services.
20. Identifies or refers to us or to the Services in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between you (or a third party) and us without our prior express written consent.

INTELLECTUAL PROPERTY

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of personality, trademark, trade dress and service mark rights, goodwill, trade secret rights, and any and all other intellectual property rights and proprietary rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals, and extensions thereof, under Applicable Law.

You understand and acknowledge that we own and will continue to own all rights (including Intellectual Property Rights), title, and interest in and to the Services and the Member App. All of the information and other content displayed on, transmitted through, or used in connection with the Member App and the Services, including but not limited to, text, graphics, logos, trademarks images, advertising, directories, guides, articles, opinions, reviews, photographs, illustrations, audio clips, video, html, source and object code, algorithms, software, data, the selection and arrangement of the aforementioned and the "look and feel" of the Member App and Services (collectively, the "Intellectual Property") is the property of Kinetik and protected by copyright law and other laws that protect intellectual property and proprietary rights. You understand and acknowledge that we (or our licensors (including other Users), as applicable) own and will continue to own all rights (including Intellectual Property Rights), title, and interest in and to the Service, all materials and content displayed or otherwise made available on and/or through the Service, and all software, algorithms, code, technology, and intellectual property underlying and/or included in or with the Service (collectively and individually, “Kinetik Intellectual Property”) and you agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such Kinetik Intellectual Property and will not make any changes thereto.

You will not access, license, rent, distribute, copy, reproduce, display, perform, adapt, edit, modify, publish, transmit, reverse engineer, sell or participate in the transfer or sale, create derivative works, or in any way exploit any of the Kinetik Intellectual Property, in whole or in part, found on the Member App or the Services. Your use of the Member App and the Services does not entitle you to make any unauthorized use of any Kinetik Intellectual Property, and in particular you will not delete or alter any proprietary rights or attribution notices in any Kinetik Intellectual Property. You will use Kinetik Intellectual Property solely for your personal use and will make no other use of the Kinetik Intellectual Property without our express written permission. You agree that you do not acquire any ownership rights in any Kinetik Intellectual Property. We do not grant you any licenses, express or implied, to the intellectual property of Kinetik or our licensors except as expressly authorized by these Terms.

You are granted a non-exclusive, limited, non-transferable, freely revocable right to access and use the Kinetik Member App solely for your personal use or internal business purposes, as applicable, and subject to and strictly in accordance with these Terms. As a condition of your use of the Kinetik Member App and the Services, you warrant that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. You may not use the Member App in any manner which could damage, disable, overburden, or impair the Kinetik Member App or interfere with any other party's use and enjoyment of the Kinetik Member App. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Kinetik Member App. We may terminate the right granted in this Section at any time, for any reason or no reason. We reserve all rights not expressly granted herein in and to the Services.

All other Intellectual Property Rights, including trademarks, registered trademarks, product names and Kinetik names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Kinetik.

FEEDBACK

You can submit questions, comments, suggestions, ideas, original or creative materials or other information about Kinetik, the Kinetik Member App or the Services (collectively, "Feedback"). Feedback is our confidential information and shall become the sole property of Kinetik and you hereby assign to us all rights (including Intellectual Property Rights), title, and interest in and to the Feedback. We shall own exclusive rights, including, without limitation, all Intellectual Property Rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you or any third party, although we are not required to use any Feedback.

USAGE DATA

We may collect, or you may provide to us, diagnostic, technical, usage, and/or related information, including information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). All Usage Data is and will be owned solely and exclusively by us, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to us all rights (including Intellectual Property Rights), title, and interest in and to same. Accordingly, we may use, maintain, and/or process the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Services; (b) to improve our products and services (including the Services), and to develop new products, services, and/or features; (c) to monitor your usage of the Services; (d) for research and analytics, including, without limitation, data analysis, identifying usage trends, and/or customer research; and (e) to share analytics and other derived Usage Data with third parties, solely in de-identified or aggregated form. The Services may contain technological measures designed to prevent unauthorized or illegal use of the Services; you understand and acknowledge that we may use these and other lawful measures to verify your compliance with these Terms and to enforce our rights, including Intellectual Property Rights, in and to the Services.

ERRORS, INACCURACIES, AND OMISSIONS

We reserve the right, in our discretion, to correct any errors, inaccuracies or omissions, and to change or update information if any information on the Kinetik Member App is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information on the Kinetik Member App or the Services, except as required by law. WE DO NOT REPRESENT, WARRANT OR OTHERWISE ENDORSE THAT THE KINETIK MEMBER APP OR THE SERVICES OR ANY CONTENT, INFORMATION OR GOODS THAT ARE AVAILABLE OR ADVERTISED OR SOLD THROUGH THE SERVICES ARE ACCURATE, COMPLETE, AVAILABLE, CURRENT, OR THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICES.

INDEMNIFICATION

WITH THE EXCEPTION OF GROSS NEGLIGENCE AND WILLFUL MISCONDUCT ON OUR PART,YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS KINETIK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND THIRD PARTIES, FOR ANY LOSSES, COSTS, LIABILITIES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) RELATING TO OR ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE KINETIK MEMBER APP OR SERVICES, YOUR VIOLATION OF THESE TERMS OR YOUR VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR YOUR VIOLATION OF ANY APPLICABLE LAWS, RULES OR REGULATIONS, OR YOUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

DISCLAIMERS; NO WARRANTIES

KINETIK DOES NOT PROVIDE NEMT SERVICES, AND KINETIK IS NOT A TRANSPORTATION CARRIER. KINETIK IS NOT A COMMON CARRIER OR PUBLIC CARRIER. IT IS UP TO THE NEMT PROVIDER TO DECIDE WHETHER OR NOT TO OFFER A NEMT TRIP TO A USER CONTACTED THROUGH THE MEMBER APP, AND IT IS UP TO THE USER TO DECIDE WHETHER OR NOT TO ACCEPT A NEMT TRIP FROM ANY NEMT PROVIDER CONTACTED THROUGH THE MEMBER APP. ANY SPECIFIC NEMT SERVICES ARE SUBJECT TO A SEPARATE AGREEMENT BETWEEN YOU AND THE NEMT PROVIDER. WE CANNOT ENSURE THAT A NEMT PROVIDER OR USER WILL COMPLETE AN ARRANGED NEMT TRIP. WE HAVE NO CONTROL OVER THE QUALITY OR SAFETY OF THE TRANSPORTATION THAT OCCURS AS A RESULT OF THE NEMT SERVICES. ANY SAFETY-RELATED FEATURE, PROCESS, POLICY, STANDARD, OR OTHER EFFORT UNDERTAKEN BY KINETIK IS NOT AN INDICATION OF ANY EMPLOYMENT OR AGENCY RELATIONSHIP WITH ANY USER.

LOCATION DATA PROVIDED BY THE MEMBER APP IS FOR BASIC LOCATION PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON IN SITUATIONS WHERE PRECISE LOCATION INFORMATION IS NEEDED (SUCH AS FOR EMERGENCIES) OR WHERE ERRONEOUS, INACCURATE OR INCOMPLETE LOCATION DATA MAY LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE (SUCH AS DURING EMERGENCIES). KINETIK DOES NOT GUARANTEE THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF LOCATION DATA TRACKED OR DISPLAYED BY THE MEMBER APP. ANY OF YOUR INFORMATION, INCLUDING GEOLOCATIONAL DATA, YOU UPLOAD, PROVIDE, OR POST ON THE MEMBER APP MAY BE ACCESSIBLE TO KINETIK AND CERTAIN USERS OF THE MEMBER APP.

EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY HEREIN BY KINETIK, THE SERVICES, THE MEMBER APP, AND THE INFORMATION CONTAINED ON THE KINETIK MEMBER APP AND/OR THE SERVICES (INCLUDING THE KINETIK INTELLECTUAL PROPERTY) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND KINETIK MAKES NO WARRANTIES THAT ANY CONTENT OR ANY OTHER INFORMATION CONTAINED IN, OR AVAILABLE VIA, THE MEMBER APP OR THE SERVICES IS ACCURATE, COMPREHENSIVE, RELIABLE, USEFUL, OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KINETIK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICES AND INFORMATION CONTAINED THEREIN. KINETIK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE MEMBER APP OR THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. UNITED STATES FEDERAL LAW AND SOME STATES, PROVINCES, AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF AND/OR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KINETIK OR ANY OF ITS OWNERS, EMPLOYEES, OFFICERS, AGENTS, AFFILIATES, AND SUBSIDIARIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE KINETIK MEMBER APP OR KINETIK INTELLECTUAL PROPERTY OR THE USE OF ANY SERVICE OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

THE MEMBER APP MAY BE USED BY YOU TO REQUEST AND SCHEDULE NEMT TRIPS, GOODS, OR THIRD-PARTY SERVICES WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KINETIK HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY NEMT TRIPS, TRANSPORTATION, GOODS, OR THIRD-PARTY SERVICES SET FORTH IN THESE TERMS. FOR CLARITY AND WITHOUT LIMITING THE FOREGOING, KINETIK HAS NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR RELIANCE ON NEMT TRIPS, TRANSPORTATION, GOODS, OR THIRD-PARTY SERVICES SET FORTH IN THIS AGREEMENT OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, INCLUDING NEMT PROVIDER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF KINETIK ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICES EXCEED THE MONETARY VALUE FROM WHICH SUCH SERVICES AROSE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF AND/OR LIMITATIONS ON INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

RELIANCE ON INFORMATION POSTED

Commentary and other materials posted on the Kinetik Member App are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor of the Kinetik Member App or uses of the Services, or by anyone who may be informed of any of its contents.

MOBILE APPLICATION LICENSE

Use License

To use the Member App, you must have a mobile device that is compatible with the Member App. We do not warrant that the Member App will be compatible with your mobile device. You may use mobile data in connection with the Member App and may incur additional charges from your wireless provider in connection with the Member App. If you access the Services via the Member App, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use a compiled code copy of the Member App under your Account on the Member App on wireless electronic devices from which the Member App is used (except to the extent Apple or Google permits any shared access and/or use of the iOS App or Android App (as each of those terms is defined below), respectively), and to access and use the Member App on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. The foregoing license grant is not a sale of the Member App or of any copy thereof. You shall not: (1) except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Member App; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Member App or otherwise make any copies of the Member App; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the Member App; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the Member App; (5) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Member App to any third party, or use the Member App to provide time sharing or similar services for any third party or otherwise use the Member App for any revenue-generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the Member App available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the Member App for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the App; (8) use the Member App to send automated queries to any Kinetik Member App or to send any unsolicited commercial email; (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Member App; or (10) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Member App, features that prevent or restrict use or copying of any content accessible through the Member App, or features that enforce limitations on use of the Member App.

You acknowledge that we may, from time to time, issue upgraded versions of the Member App, and may automatically electronically upgrade the version of the Member App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and you understand and acknowledge that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated into the Member App is covered by the applicable open source or third-party license, if any, authorizing use of such code. We or our third-party partners or suppliers retain all right, title, and interest in and to the Member App (and any copies thereof). Any attempt by you to transfer or delegate any of the rights, duties, or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms.

iOS App

This Section (iOS App) applies to the Member App you acquire from the Apple App Store (such Member App, “iOS App”). You understand and acknowledge that these Terms are solely between you and Kinetik, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the iOS App or content thereof. Your access to and use of the iOS App must comply with the usage rules set forth in Apple’s then-current Apple Media Services Terms and Conditions and with the applicable Volume Content Terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the iOS App to you; to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be governed solely by these Terms and any law applicable to Kinetik as provider of the iOS App. You and Kinetik acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the iOS App, or your possession and use of that iOS App, infringes that third party’s intellectual property rights, Kinetik, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim, to the extent required by these Terms. You and Kinetik acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms as relates to your license of the iOS App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the iOS App against you as a third-party beneficiary thereof.

Android App

The following applies to the Member App you acquire from the Google Play Store (such App, “Android App”): (a) you acknowledge that these Terms are between you and Kinetik only, and not Google LLC or any affiliate thereof (collectively, “Google”); (b) your access to and use of the Android App must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Android App; (d) Kinetik, and not Google, is solely responsible for the Android App; (e) Google has no obligation or liability to you with respect to the Android App or these Terms; and (f) you understand and acknowledge that Google is a third-party beneficiary to these Terms as they relate to the Android App.

TERMINATION OR MODIFICATION OF SERVICE

We reserve the right to refuse registration, to suspend, block, prevent access to, cancel, or otherwise terminate your right to use the Kinetik Member App at any time, with or without cause, in our sole discretion and without prior notice to you. We may refuse to accept or may cancel any registration, whether or not the registration has been confirmed, for any or no reason, and without liability to you or anyone else. We also reserve the right to limit or prohibit all activity, including Accounts that, in our sole judgment, appear to be malicious or unlawful. All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

ARBITRATION

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST KINETIK ON AN INDIVIDUAL BASIS IN ARBITRATION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST KINETIK, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST KINETIK BY SOMEONE ELSE.

You and Kinetik agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, (b) your access to or use of the Services at any time, (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a User or consumer, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Kinetik, and not in a court of law.

If you are a new User, you can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing us at support@kinetik.care with your full, legal name and stating your intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or the courts in which any disputes must be brought.

The arbitration shall be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.

The Arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to these Terms or any disputes arising as a result of these Terms, whether directly or indirectly, including tort claims that are a result of these Terms. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY. This Arbitration Agreement shall survive the termination of these Terms.

Nothing in this Arbitration Agreement will be deemed as: preventing us 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, confidential information, or intellectual property rights; or preventing you from asserting claims in a small claims court, provided that your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-collective, and non-representative) basis.

If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.

CLASS ACTION WAIVER

BY ENTERING INTO THESE TERMS, YOU AND KINETIK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES TO ALL USERS (BOTH NATUAL PERSONS AND ENTITIES), REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. YOU AND KINETIK AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS.

JURISDICTION AND APPLICABLE LAW

If for any reason, a dispute proceeds in court, including for equitable relief, you irrevocably consent to the exclusive jurisdiction of the state courts in the State of New York for purposes of any legal action arising out of or related to the use of the Kinetik Member App, the Services, or these Terms. To the maximum extent permitted by law, this agreement is governed by the laws of the State of New York, without regard to New York conflict of laws rules. Use of the Kinetik Member App and the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.

ENTIRE AGREEMENT

Unless otherwise specified herein, this agreement constitutes the entire agreement between you and us with respect to the Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us.

U.S. Government Restricted Rights

To the extent the Member App or Services are being used by or on behalf of the U.S. Government, the Services will be deemed commercial computer software or commercial computer software documentation (as applicable). Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other Users hereunder, in accordance with 48 C.F.R. §227.7202 and 48 C.F.R. §12.212, as applicable.

Export Controls

You understand and acknowledge that the Member App and Services may be subject to export control laws and regulations. You will comply with all applicable import and export and re-export control and trade and economic sanctions laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations maintained by the U.S. State Department. You represent and warrant that you are not, and that no person to whom you make the Member App or Services available or that is acting on your behalf, or, if you are an Organization, that no person or entity owning 50% or more of your equity securities or other equivalent voting interests, is (a) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by OFAC or by any other governmental entity, or (b) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region.

CHANGES TO TERMS

We may provide notifications, whether such notifications are required by Applicable Law or are for marketing or other business-related purposes, to you via email notice or written or hard copy notice, or through posting of such notice on the Member App, as we determine, in our sole discretion. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification, as required under Applicable Law or as described in these Terms. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. These Terms apply to and govern your access to and use of the Service effective as of the start of your access to the Member App or Services, even if such access began before publication of these Terms. Your continued use of the Member App or Services after any change to these Terms constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or to any future Terms of Service, do not access or use (or continue to access or use) the Member App or Services.

RELATIONSHIP BETWEEN THE PARTIES

The Parties are independent contractors and nothing in these Terms shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor, or employee of the other. Each Party has sole responsibility for its activities and its personnel and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.

SEVERABILITY

If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

FORCE MAJEURE

We shall be excused from performance under these Terms, to the extent we are prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (g) other causes beyond the reasonable control of Kinetik.

MISCELLANEOUS

These Terms constitute the entire agreement between you and us relating to your access to and use of the Member App and the Services. The Member App is controlled and operated from within the United States. Without limiting anything else, we make no representation that the Member App, information, or other materials available on, in, or through the Member App are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access our Member App from other locations do so on their own volition and are responsible for compliance with applicable laws. These Terms, and any rights and licenses granted hereunder, may not be transferred, or assigned by you without our prior written consent. The waiver or failure of Kinetik to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third-party beneficiary of these Terms or any provision hereof. When used herein, the words "includes" and "including" and their syntactical variations shall be deemed followed by the words "without limitation."

California Residents

The provider of the Member App is set forth below. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

CONTACT US

In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:

KINETIK HEALTHCARE SOLUTIONS

11-48 46th Road

Queens, NY 11101

United States

support@kinetik.care