These Terms of Service (these “Terms”) are a binding and enforceable contract by and between (a) CureOne™, a Utah nonprofit corporation (“CUREONE”), and (b) the individual end user (“You”) who accepts these Terms or otherwise accesses or uses the CUREONE Platform (as defined below). Unless otherwise defined below, capitalized terms used in these Terms are defined in Section 3 below.
- This is a binding and enforceable legal contract between You and CUREONE. PLEASE READ IT CAREFULLY. BY INDICATING YOUR ACCEPTANCE BELOW, OR BY ACCESSING OR USING THE CUREONE PLATFORM IN ANY MANNER, YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE WITH THE TERMS SET FORTH BELOW, DO NOT ACCESS OR USE THE CUREONE PLATFORM. At all times, your use of the CUREONE Platform or any of its services is subject to your complete and unconditional legal acceptance of and agreement to be bound by these Terms and any rules or regulations reasonably imposed by CUREONE and communicated to You in writing in connection with the access or use of all or portions of the CUREONE Platform.
- These Terms do not amend, alter or otherwise modify the Master Agreement between CUREONE and Participant. The Master Agreement remains in full force and effect, enforceable in accordance with its terms between CUREONE and Participant, and is not amended or modified in any respect by these Terms. As between You and CUREONE, these Terms establish the terms and conditions under which You, as an agent of Participant acting within the scope of your employment or other service relationship with Participant, may access and use the CUREONE Platform solely for Permitted Uses in connection with your duties and responsibilities for Participant. Your access and use of the CUREONE Platform is subject and subordinate to the Master Agreement. In the event any conflict between these Terms and the terms and condition of the Master Agreement, the terms and conditions of the Master Agreement shall control.
- The following definitions apply.
(a) “Health Information” means any information, including genetic information, whether oral or recorded in any form or medium, that: (i) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (ii) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual, with the past, present or future payment for the provision of healthcare to an individual.(b) “Master Agreement” means a valid, binding and enforceable written agreement, between CUREONE and Participant, pursuant to which a Participant has certain rights and duties with respect to the access and/or use of the N1 Registry (i.e., permitting or requiring submission of Health Information to the N1 Registry or authorizing access or use of CUREONE’s quality assurance and improvement services), as the same may be amended, renewed or extended from time to time pursuant to the terms of such Master Agreement.(c) “CUREONE Platform” means one or more internet website(s) or internet domain(s) (or restricted access portion(s) thereof) owned or controlled by CUREONE for the purpose of facilitating the transfer of Health Information and/or other data, information, reports, analysis or other copyrightable subject matter to and from the N1 Registry, including for purposes of submission of Health Information by Participant to the N1 Registry and for the delivery of services by CUREONE to Participant, pursuant to the Master Agreement.(d) “Participant” means the hospital, clinical laboratory, physician, physician group practice or other provider, or academic medical center, research organization or other organization or entity, which (i) has a Master Agreement with CUREONE with respect to the N1 Registry, (ii) employs or otherwise engages You as an employee, consultant or other service provider, and (iii) authorizes You to access and use the CUREONE Platform within the scope of your employment or other relationship.(e) “Permitted Uses” means only those uses of the CUREONE Platform expressly authorized or permitted under Participant’s Master Agreement.(f) “Registry” means one or more proprietary database(s) (including any subsets or components of such proprietary database) owned or controlled by CUREONE for the purpose of collecting Health Information (as defined below) related to cancer and cancer-treatment knowledge for the purpose of analysis and improvement of precision medicine and cancer and cancer-treatment knowledge.(g) “Term” means the term of the Master Agreement, except that the “Term” shall automatically terminate (without any required action by, or advance notice from, CUREONE) upon any termination or cessation of your employment or other service relationship with Participant.
- Upon acceptance, You will have the following rights to access and use the CUREONE Platform during the Term of the Master Agreement.
(a) Upon your complete and unconditional legal acceptance of these Terms (and subject to these Terms), CUREONE grants You a non-exclusive, non-transferable, limited, worldwide, fully-paid up, royalty-free right and license to access and use the CUREONE Platform solely for Permitted Uses during the Term. Upon any expiration of the Term or termination of the Master Agreement, your rights to access and use the CUREONE Platform shall automatically terminate (without any required action by, or advance notice from, CUREONE).(b) However, subject to the Master Agreement between Participant and CUREONE, CUREONE reserves the right at any time and from time to time (i) to modify or discontinue, temporarily or permanently, the CUREONE Platform or any items or services offered by or through the CUREONE Platform or (b) to limit, suspend or terminate your current or future use of the CUREONE or any items or services offered by or through the CUREONE Platform.
- The CUREONE Platform may be used solely for Permitted Uses. In addition to that limitation, You shall not:(a) market, distribute, sell, rent, license, sublicense or resell the CUREONE Platform, or rights to access or use the CUREONE Platform, or any part thereof, whether as a distributor, reseller or otherwise;(b) attempt, or knowingly permit or encourage others to attempt, to decompile, decipher, disassemble, reverse engineer (unless expressly permitted by applicable law) or otherwise decrypt or discover the source code of all or any portion of the CUREONE Platform;(c) use the CUREONE Platform to provide processing services to third parties, to provide commercial timesharing, rental or sharing arrangements to third parties, on a “service bureau” basis, or to otherwise allow any third party to directly or indirectly use the CUREONE Platform for itself or for the benefit of any other party;(d) utilize framing or similar techniques to present or display the CUREONE Platform on any website;(e) distribute, publish, facilitate, enable, or allow access to the CUREONE Platform to any other person;(f) export, ship, transmit or re-export any part of the CUREONE Platform in violation of any applicable law or regulation including, without limitation, the Export Administration Act of 1979 or the Export Administration Regulations issued by the United States Department of Commerce.
- CUREONE owns all right, title and interests in and to the CUREONE Platform and the N1 Registry. Notwithstanding anything to the contrary in this Agreement, as between You and CUREONE,(a) all title to, ownership of and all proprietary rights (including but not limited to patent rights, copyrights, trade secrets and other intellectual property rights) in and to the CUREONE Platform, other than the limited rights expressly granted to or reserved by Participant as expressly set forth in the Master Agreement, shall remain vested solely and exclusively in CUREONE;(b) all title to, ownership of and all proprietary rights (including but not limited to patent rights, copyrights, trade secrets and other intellectual property rights) in and to the N1 Registry shall remain vested solely and exclusively in CUREONE; and(c) all appropriate copyright and other proprietary notices and legends shall be retained on the CUREONE Platform and any printable or viewable reports generated by the use of the CUREONE Platform. Except for your limited rights to access and use the CUREONE Platform as described herein, You shall have no further rights, titles or interests in or to the CUREONE Platform (or its content, items or services or the software CUREONE uses to host, maintain and/or operate the CUREONE Platform) or the N1 Registry.
- You must comply with HIPAA and other applicable laws regarding privacy of patient records. In your capacity as an employee, consultant or advisor of Participant, You acknowledge and agree that You are subject to Participant’s policies regarding the use or disclosure of Health Information that is protected under applicable state and/or federal law, including the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act, as well as amendments, regulations, rules and guidance issued thereto.
- CUREONE makes no representations or warranties to You. YOUR USE OF THE CUREONE PLATFORM AND/OR ANY ITEMS OR SERVICES PROVIDED BY OR THROUGH THE CUREONE PLATFORM IS AT YOUR SOLE RISK. THE CUREONE PLATFORM AND/OR ANY ITEMS OR SERVICES PROVIDED BY OR THROUGH THE CUREONE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUREONE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY AND NON-INFRINGEMENT.
- CUREONE’s liability, if any, to You is limited. CUREONE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CUREONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR INABILITY TO USE THE CUREONE PLATFORM AND/OR ANY ITEMS OR SERVICES PROVIDED BY OR THROUGH THE CUREONE PLATFORM. IN NO EVENT SHALL CUREONE’s LIABILITY TO YOU, IF ANY, UNDER THESE TERMS EXCEED $25.00 IN THE AGGREGATE. YOU COVENANT AND AGREE THAT CUREONE SHALL NOT HAVE ANY DUTIES, LIABILITIES OR OBLIGATIONS TO YOU.
- You waive any claims, demands or causes of action against CUREONE. Except as otherwise expressly provided in the Master Agreement, CUREONE shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by You or other person in connection with the access or use of the CUREONE Platform. You expressly acknowledge and agree, and You hereby irrevocably and unconditionally waive and relinquish any claims or demands against CUREONE to the contrary (and agree to indemnify CUREONE against same), that CUREONE shall not be liable to You or other third party for any claims, demands, damages or causes of action of any kind or nature related to or arising from (a) any modification, suspension or discontinuance of the CUREONE Platform or any items or services offered by or through the CUREONE Platform or (b) for any loss or damage arising from or related to your access to or use of the CUREONE Platform. Further, and notwithstanding anything to the contrary in these Terms, CUREONE shall have no duty or obligation to: (i) provide medical or healthcare services of any kind or nature, whether by or through a licensed medical doctor, geneticist, pathologist or otherwise; (ii) develop, create, modify or improve any computer software, whether software applications, application programming interfaces for the exchange of data or otherwise; or (iii) save, maintain, store or otherwise manage any data or databases.
- CUREONE is not responsible for Third Party Websites. The CUREONE Platform (including any software, data, content or copyrightable subject matter found or accessible by or though the CUREONE Platform) may contain links to internet websites or other electronic resources owned, controlled or operated by third parties (“Third Party Websites”). CUREONE exercise no control whatsoever over such other Third Party Websites or the software, data, information, content or other materials found on such Third Party Websites. CUREONE shall not be liable under any circumstance, and bears no responsibility, for any claims, demands, damages or causes of action of any kind or nature related to or arising from your access or use of any Third Party Website or the information, materials or other content displayed on or accessible through such Third Party Website.
- CUREONE may modify these Terms by notice. With respect to You, CUREONE reserves the right, in its sole discretion, to update, amend, modify or supplement the terms of these Terms at any time by written notice, provided that any such update, amendment, modification or supplement complies with the terms and conditions of the Master Agreement applicable to amendments or modifications of these Terms.
- Any notices to CUREONE must be delivered in writing by electronic mail. All notices, requests or other communications required or permitted under these Terms shall be in writing and shall be delivered via internet electronic mail as follows: (a) if to You, addressed to the electronic mail address on file with CUREONE relative to your registration with the CUREONE Platform, and (b) if to CUREONE, addressed to the following electronic mail address: [email protected] All notices, except notices of change of address, shall be deemed given when electronically mailed and notices of change of address shall be deemed given when received. By registering an account with CUREONE, You consent to receiving electronic communications and notices from CUREONE, and agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
- The following additional important terms and conditions apply.
(a) You shall not sell, assign, sublicense or otherwise transfer, in whole or in part, directly or indirectly, by operation of law (including by merger, change of ownership or control or other transaction), any of your rights or obligations under these Terms without CUREONE’s prior written consent, which consent may be withheld, delayed or conditioned in CUREONE’s sole discretion for any reason or for no reason.(b) If any of the provisions of these Terms shall be found to contravene any binding law or governmental regulation, it is agreed that the invalidity, unenforceability or illegality of such provision should not invalidate the whole of these Terms, but these Terms shall be construed as if it did not contain the provision or provisions found to be invalid in the particular jurisdiction(s) concerned, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.(c) The failure of CUREONE to take any action under these Terms, or the waiver of a breach of these Terms, shall not affect CUREONE’s rights to require performance hereunder or constitute a waiver of any subsequent breach. A waiver to be valid shall be in writing, but need not be supported by consideration.(d) Should CUREONE incur attorneys’ fees or costs in order to enforce these Terms, whether or not a legal action is instituted, CUREONE shall be entitled to recover its reasonable attorneys’ fees and costs, in addition to all other rights and remedies it may have at law or in equity.(e) These Terms shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and ambiguities shall not be interpreted against the drafting party. In interpreting these Terms, the word “or” shall not be construed as exclusive, and the word “including” shall not be construed as limiting. The headings herein are for reference only and shall not define or limit the provisions hereof.(f) These Terms and any claims arising out of these Terms shall be governed by and construed in accordance with the substantive laws of the State of Idaho, without regard to conflicts of law principles. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the state and federal courts located in Madison County, Idaho. By accepting these Terms, You consent to and submit to the jurisdiction of the state and federal courts located in Madison County, Idaho, and hereby irrevocably and unconditionally waive any defense or objection, whether procedural or otherwise, based upon lack of personal jurisdiction, inconvenient forum or the like. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY.(g) The CUREONE Platform constitutes “commercial items” (as defined in FAR 2.101). If used by or provided to the U.S. Government under these Terms, the U.S. Government acknowledges that (i) such CUREONE Platform constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 CFR 12.212 and 48 CFR 227.7202, (ii) such data, technical data and documentation are commercial items for purposes of 48 CFR 12.211 and 48 CFR 227.7102, as applicable, and (iii) the U.S. Government’s rights are limited to those specifically granted pursuant to these Terms.
- This is a complete expression of the entire agreement between CUREONE and You. These Terms contain the entire agreement of the parties with respect to the subject matter of these Terms and supersedes all previous or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.