General Terms and Conditions

General Terms and Conditions for the KINI exercise App (“T&C”)

BRAINWAR production s.r.o.
registered office at Kramolná 2454/31a, Horní Počernice, 193 00 Prague 9
ID No.: 04433017
registered in the Commercial Register kept by the Municipal Court in Prague under File No.: C 247617
e-mail: support@kini.cz

(hereinafter also referred to as the “Provider“)

1. Introductory provisions

These General Terms and Conditions of the Provider (hereinafter referred to as “T&C“) regulate in accordance with the provisions of § 1751 paragraph 1 and § 2389a et seq. of Act No. 89/2012 Coll., Civil Code (hereinafter referred to as the “Civil Code“), the mutual rights and obligations of the parties arising in connection with or on the basis of a contract for providing access to the Provider’s exercise application, i.e. digital content (hereinafter referred to as the “contract“) concluded between the Provider and another natural person, i.e. you (hereinafter also referred to as the “Customer“) via the app store:

• App Store (https://www.apple.com/cz/app-store/)
• Google Play (https://play.google.com/store/games?hl=cs&gl=cz)

operated by third parties in accordance with their terms and conditions (hereinafter also referred to as “App store(s)“).

The Provider is the copyright holder of the exercise programs offered within the KINI App, (hereinafter referred to as “exercise program(s)“, “digital content“, “DC” or, if applicable, collectively as “KINI“). The functionality of KINI or the description of the exercise programs is contained on the website www.kini.cz and in the App stores. In view of the foregoing, the Provider is entitled to provide you with access to the exercise programs and to allow you to use them to the extent specified through the KINI App.

These T&C are an integral part of the contract. The Provider and the Customer may agree different terms and conditions, in which case these specific terms and conditions shall prevail over the terms and conditions of the T&C.

2. Information about the KINI App, digital content, availability and pricing

The digital content represents exercise programs designed by physiotherapists with professional specialization for exercise at home or similar environments.

The KINI App is freely available for download to your mobile or tablet device in the App stores. However, digital content as such and its accessibility within KINI is subject to a fee (so-called In-App Purchases). The prices for making DC available are listed in the KINI App, these prices may change over time.

In the case of a promotional price, it is specified under what conditions and until what time the promotional price is valid. Due to the nature of exercise programs – online access to digital content via App stores, the final price is indicated when the payment gateway is displayed within the App store that processes the payment. Prices are always inclusive of VAT.

All presentations of the exercise programs on the website www.kini.cz are for informational purposes only. Exercise programs will be made available to you only after you have made the appropriate choice within the KINI App (see below), you can download the KINI App on your mobile device with only basic functionalities, without paying the appropriate price you will not have access to the selected functionalities of the KINI App, especially the exercise programs as such.

Paid content – exercise programs

• Exercise programs are available on a subscription basis. The KINI App offers monthly or annual subscriptions. The prices for the respective subscription option are available in the KINI App or in the App store, these prices are subject to change, however, the price at the time of payment of the respective subscription is decisive for your subscription and DC availability. If you do not cancel renewal of your subscription before the end of the relevant period, your subscription will be renewed for the same period, if the price changes in the interim, the new price will be charged for that additional period. If you do not agree to the change, you must cancel your subscription in a timely manner (i.e. before the end of the applicable period).

Trial version (period) – exercise programs

• The KINI App offers a trial version of paid content, unless otherwise stated in the KINI App, the trial period is 3 days. Payment details are required to start the trial period. By providing these details, you begin using the trial version for the trial period and agree that on the first day after the end of the trial period, automatic billing of the payment corresponding to the selected subscription version may begin. If you do not agree, you must cancel the relevant paid content subscription before the end of the trial period.

Notwithstanding the above, we have the right to provide (usually for a limited period of time) special prices or discounts from the basic prices or discount codes. These have specific terms and conditions as set out in the KINI App, or on the website www.kini.cz or in the Newsletter to which you can subscribe.

3. Order, contract, payment, delivery of digital content

You will start the process of ordering the KINI App in the App store by clicking on the “Install” (or similar) button and, as required by the respective App store, by simultaneously verifying your account (e.g. entering your password), for the avoidance of doubt, we would like to clarify and remind you that your relationship with the App store operator (Apple or Google) is governed by different terms and conditions than these T&C.

The subscription order (paid content / trial) is made within the KINI App by selecting the exercise program and the subscription length, and the contract is concluded after you click on the “Buy” / “Pay” (or similar) button and make a successful payment through the App store payment gateway (and verify your account if required by the App store). The DC will then be made immediately available to you, which you acknowledge and agree to.

Payment for the subscription to the exercise programs is provided by the App store operator, who will also issue you with a confirmation of the order and payment, in accordance with their respective terms and conditions. Please note that we have no influence on the payment process or payment methods accepted by the respective App store operators. Furthermore, please note that we have no influence on the form of the confirmation of the concluded contract issued and delivered to you by the App store operator, therefore, for the sake of certainty, we emphasize that by completing the above procedure, you agree to commence performance of the contract before the expiry of the withdrawal period, thus extinguishing your right to withdraw from the contract, all within the meaning of §1824a and §1837 (l) of the Civil Code.

The Customer agrees to the use of remote means of communication for the conclusion of the contract.

Costs incurred by the client when using remote means of communication in connection with the conclusion of the contract (e.g. costs of internet connection) shall be borne by the Customer himself.

In order to obtain the KINI App and for the digital content to function properly, you must have the appropriate software (operating system – iOS or Android) and hardware (mobile or tablet device) whose minimum specifications are listed in the App stores. Unless otherwise stated, you need the latest version of iOS or Android for the KINI App to work properly.

When you install the KINI App, you are required to create a user account to which we can then make the digital content available. As part of creating a user account, you will be asked to provide your first name, last name, email and date of birth.

An internet connection is required to access the exercise programs (the exercise program cannot be saved in the phone’s memory).

Once you have accessed the exercise program, please check the functionality and availability of the content as soon as possible. If you find any deficiencies, please contact us to arrange a remedy (see below).

If there is an update to the KINI App, e.g. due to functionality improvements, bug fixes, security enhancements, etc., you will be able to download it freely in the App Store, however, individual updates may depend on your software or hardware, we recommend that you check the compatibility of your device before downloading the update.

4. Rights arising from defective performance and withdrawal from the contract

As a provider of digital content, we are responsible for the fact that the DC is free of defects and that it is provided in accordance with the contract. Conformity with the contract means in particular that the content is as described and that it is made available to you for the period of time specified. Conformity with the contract means in particular that:

• DC corresponds to the description on the website www.kini.cz, in the App store, the description contained in the advertisement or in our communication relating to the contract;
• DC is provided at the agreed time in the agreed manner and for the agreed period.

With regard to the nature of the DC – exercise programs, please note that failure to achieve the desired physiological results on the part of the Customer is not understood as defect of the DC.

In view of the above conditions and the nature of the digital content that is made available to you immediately upon completion of the contract process (as set out in Article III above), you acknowledge that you are not entitled to withdraw from the contract within 14 days of the conclusion of the contract within the meaning of the relevant provisions of the Civil Code (without giving any reason) and you waive this right.

Although we make every effort to ensure that the KINI App and exercise programs are error-free, we cannot rule out such eventuality. If you notice a defect in the KINI App or the exercise program, please contact us at support@kini.cz without undue delay, including a description of the defect and basic information about your mobile device and operating system version, and we will do our best to fix the defect as soon as possible (usually within 30 days). Due to the nature of our performance, i.e. remote delivery of digital content, it is imperative that you provide us with all necessary assistance to successfully resolve the issue, otherwise you expose yourself to the risk that the defect will not be possible to fix.

If we do not correct the defect (even if you provide us with the necessary cooperation), or if the correction of the defect would pose significant difficulties on your part, and it is also a significant defect or a material breach of contract (e.g. the subscription period is shorter, the digital content is not complete), you are entitled to a discount or you can withdraw from the contract.

We remind you that any defects on the part of the App stores are not attributable to us, but also that the App stores are not liable for due performance of this contract.

In view of the fact that the KINI App as well as the payments for the exercise programs are mediated by the App stores, we may not be able to refund the money for the paid content without further action and it will be necessary to arrange the cooperation of the operator of the respective App store, therefore, if you believe that you have the right to withdraw from the contract, please first contact the operator of the App store via the link provided in the confirmation of the purchased paid content (e.g. “report a problem”) or directly in the App store application, or contact us at support@kini.cz.

5. License

By gaining access to the exercise program (whether in the paid or trial version), you get a time-limited permission to use the exercise program for personal use only, and only through the KINI App for the period of time you have ordered. You are not entitled to record, reproduce, distribute, communicate to the public, process, use in modified form, combine with other works or copyright elements or sublicense KINI (including the exercise programs as such and their individual elements, e.g. text, audio, video) in any way.

In connection with your use of KINI, you must also comply (and ensure compliance) with at least the following additional requirements:

• comply with all applicable laws, intellectual property rights or personality rights (including third party rights);
• not to use KINI in a way that compromises the safety or functionality of KINI;
• to use KINI only in accordance with the purposes and in the manner set out in these T&C;
• not to reverse engineer, modify, decompile or otherwise alter the properties and composition of the KINI App.

All intellectual property rights on the www.kini.cz website, in particular the copyright in the content, including page layout, photographs, audiovisual works, other visual works, trademarks, logos and other content and elements, belong to the provider. It is prohibited to copy, modify or otherwise use the website or any part thereof without the consent of the Provider.

The Provider shall not be liable for errors resulting from third party interference with the www.kini.cz website or from its use contrary to its intended purpose. When using this website, the Customer shall not use any procedures that could have a negative impact on its operation and shall not perform any activity that could allow him or third parties to interfere with or make unauthorised use of the software or other components that make up this website and use it or its parts or software in a manner that would be contrary to its purpose or intent.

6. NOTICE

The exercises included in the exercise programmes are not recommended as a treatment for acute or long-term musculoskeletal problems. If in doubt, we do not recommend performing the exercises in the exercise programs without prior personal consultation with a physiotherapist or treating physician. In case of any pain or other musculoskeletal problems, consultation with a physiotherapist or treating physician is required. Performing exercises according to the exercise programs is at your own risk and we are not liable for any malperformance of exercises.

This equipment is advised for performing exercises – mat and little pillow or yoga block.

7. Delivery

The Parties may deliver all written correspondence to each other by electronic mail.

The Customer shall deliver correspondence to the Provider at the e-mail address specified in the header of these T&C. The Provider shall deliver correspondence to the Customer at the e-mail address specified in the Customer’s user account or in the order, or directly in the KINI App.

8. Final provisions

All arrangements between the Client and the Provider shall be governed by the laws of the Czech Republic. If the relationship established by the contract contains an international element, the parties agree that the relationship shall be governed by the law of the Czech Republic. This is without prejudice to the rights of the consumer under generally binding legal regulations.

The Customer hereby assumes the risk of a change of circumstances within the meaning of Section 1765(2) of the Civil Code.

The contract including the T&C is archived by the provider in electronic form and is not accessible.

The provider may change or supplement the wording of the T&C. This provision does not affect the rights and obligations arising during the period of validity of the previous version of the T&C.

These T&C and the contract are concluded in the Czech language.

The contract is concluded for a definite period of time, until the obligations of the provider and the client under the contract are fulfilled.

The protection of personal data is governed by a separate document, which can be found on the website www.kini.cz.

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These General Terms and Conditions (T&C) shall take effect on 1^st April 2023.