TERMS OF SERVICE
a.“Company” means Klinikals Technologies, LLC, a Delaware limited liability company, whose principal place of business is located at 300 Delaware Avenue, Suite 210-A, Wilmington, DE 1981, County of New Castle.
b.“R&D” means research and development activities performed by Company on User data. These activities may include, but are not limited to, improving our Services; offering new products or services; and performing quality control activities.
c."Service" or "Services" means all software, website or web platform communication amenities or portals and applications; any information or access to information provided or facilitated by Company’s web-based portals or application platforms to provide support for a Service or information derived or transmitted by a Service; and/or any other Services provided by Company.
d.“Third Party Service or Services” may or may not involve consulting or medical services provided by a physician or other healthcare provider, using Internet or telemedicine or other electronic communication.
e."Personal Information" is information that can be used to identify User, either alone or in combination with other information. Company collects and stores the following types of Personal Information:
i."Aggregated Data" means a collection of data from some or all Company users, including, but not limited to, Image Data and Self-Reported Information (Company will endeavor to remove all Registration Information and other Personal Information other than Self-Reported Information from the Aggregated Data sufficient to minimize the possibility of exposing individual-level information while still providing evidence for scientific research purposes).
ii."Image Data" means any images or videos captured using Services provided by Company.
iii."Registration Information" means the information that User provides when registering for and/or purchasing Services provided by Company (e.g. name, email, address, user ID and password, and payment information).
iv."Self-Reported Information" means all information that User enters into surveys, forms, or features while signed in to Company accounts including, but not limited to, health information, disease conditions, treatment information, healthcare provider identification, other health- related information, personal traits, ethnicity, family history, and other information.
f."Medical Practice" means any health care provider or physician offering health care services to individuals accessing Company Services.
g."User" or "Users" means any Individual or Medical Practice authorized by Company to utilize the Services provided by Company, including those individuals acting on behalf of an authorized User, individuals with legal authorization for User, and employees or agents of Medical Practice.
h."User Content" means all information, data, text, photographs, graphics, video, software, music, audio, messages, or other materials—other than Self-Reported Information—generated by Users of Services provided by Company, and transmitted, whether publicly or privately, to or through Company.
i."Web Behavior Information" means all information related to usage of the Company website (e.g. browser type, domains, page views) collected through log files, cookies, and web beacon technology.
2.ACCEPTANCE OF TERMS.
a.Use of Services provided by Company is subject to the terms of the legal agreement between User and Company set forth in these Terms of Service ("TOS"). Except as specified herein, these TOS apply to any use of the Services provided by Company, including but not limited to: (a) capturing video or images with Company Services; (b) uploading additional information and interacting with it on the Company website or applications; and/or (c) creating and using a Company account without capturing a video or image or providing additional information. In order to use the Services provided by Company, User must first agree to the TOS. A User may not use the Services if he or she does not accept the TOS. To accept the TOS, User must: (1) click to accept or agree to the TOS, where this option is made available by Company for any Services; or (2) actually use the Services. In that case, User acknowledges and agrees that Company will treat any use of the Services as acceptance of the TOS from that point onwards. In addition, when using particular Company Services, User is subject to any guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. Company also may offer other services from time to time that are governed by different terms of service.
a.Whether User captures his or her own video or image, or does so for anyone for whom User has legal authority to agree, or otherwise provides his or her own information, User may not use the Services provided by Company and may not accept the TOS if User is: (1) not of legal age to form a binding contract with Company; or (2) barred from receiving the Services under the laws of the jurisdiction in which User is a resident, or in which he or she uses the Services provided by Company.
b.In addition to the conditions above, if User contributes or otherwise provides his or her information, User must be eighteen years of age or older to agree to these TOS on behalf of User or those for whom User has legal authority to agree.
c.In addition to the conditions above, if User contributes or otherwise provides his or her information, User must be eighteen (18) years of age or older. Furthermore, to agree to these TOS on behalf of User or those for whom User has legal authority to agree, that individual must be eighteen (18) years of age or older.
4.DESCRIPTION OF SERVICES.
a.Company owns and operates the websites located at www.Klinikals.com, and various mobile applications (collectively, the “Site” or “Sites”). Through these Sites, Company operates various online service platforms that enable Users to receive various types of health care information and telehealth Services. The Sites also have public portions that allow anyone to educate themselves on the Services available from Company.
b.The Services provided by Company include access to the Company public website and associated Services. Unless explicitly stated otherwise, each new feature that augments or enhances the current Services shall be subject to the TOS. Third Party Service or Services, and Third-Party Use or Uses, while not provided by Company, may or may not involve third party consulting or medical services provided by a physician or other healthcare provider, using Internet or telemedicine or other electronic communication.
c.Users acknowledge and agree that the Services are provided "AS-IS" and are based on the current technology in use by Company at the time of the purchase or viewing. As technology evolves, Company is constantly innovating in order to provide the best possible experience for its Users. User acknowledges and agrees that the form and nature of the Services provided by Company may change without prior notice. As part of this continuing innovation, User acknowledges and agrees that Company may stop (permanently or temporarily) providing some Services (or any features within the Services) to Users generally at Company's sole discretion, without prior notice. User may stop using the Services at any time. User does not need to specifically inform Company when he or she stops using the Services unless requesting closure of an account. Company assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms.
d.In order to use the Services, User must obtain Internet access, either directly or through devices that access web-based content and pay any service fees associated with such access. User is solely responsible for paying such fees. If User uses Services provided by Company on a cellular network (rather than via Wi-Fi), standard data rates or roaming may apply, according to the wireless plan. Company is not responsible for any device connection, data transmission charges, or roaming charges incurred when Services are used.
e.In addition, User must provide all equipment necessary to make such Internet connection, including a computer and modem or other access device. User is solely responsible for providing such equipment. User acknowledges and agrees that while Company may not currently have set a fixed upper limit on the number of transmissions that can be sent or received through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Company at any time, at Company's sole discretion.
5.RISKS AND CONSIDERATIONS REGARDING SERVICES.
a.User acknowledges and und agrees that the Company is not providing medical care to you in any capacity. The Company’s Services are solely for the purpose and function of offering a marketplace portal/platform for patients to seek medical attention through telephonic and videography (“Telemedicine”) means to engage with independent, solo practicing Medical Practices. Company does not provide medical advice, diagnosis or treatment.
b.Company is not a healthcare provider, and does not diagnose any condition, recommend or endorse any specific courses of action, resources, tests, physicians or other healthcare providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on the Company website or relayed to User by a Medical Practice. Company believes that only
atrained physician or other healthcare provider can assess User’s current state of health or disease, taking into account many factors, including in some cases, images and videos taken with a Company Service, as well as User’s current symptoms, if any. Reliance on any information provided by Services provided by
Company, Company employees, others appearing on the Company website at the invitation of Company, or other visitors to the Company website is solely at User’s own risk.
c.User should not share any sensitive health information when communicating with Company’s support and customer service team. Health information should be shared with User’s Medical Practice, medical provider, an appropriate healthcare professional, or directly with Company via our secure website, application and server. The designated support and customer service teams are not healthcare professionals and cannot offer medical advice.
d.User acknowledges and agrees that technological disruptions with the Services may occur. User acknowledges and agrees that Company shall not be held liable for any such disruptions that may interfere or contribute to User’s use of the Services. User acknowledges and agrees that if for any reason a disruption prohibits them from use of the Services, it the User’s sole responsibility to immediately contact
athird-party medical professional or an emergency medical provider to seek appropriate medical attention.
By accessing or using Services, User agrees to, acknowledges, and represents as follows:
a.User understands that the Company in no way is responsible or liable for the level of care provided by the Medical Practice and that User chooses to receive treatment and/or medical advice from the Medical Practice on your own accord.
b.User understands that the Medical Practice that provide medical advice and treatment to User are not in any way employees, agents, or independent contractors of the Company and are fully responsible and liable for the level of care and all Telemedicine Services provided to you. User understands the relationship between Company and Medical Practices shall not be considered or construed in any manner whatsoever to create a co-investment, joint venture, partnership, association, representation, commission or relationship of agency, meditation or intermediation between the parties for any purpose.
c.User acknowledges and understand the nature of Telemedicine Services provided by the Company. User understands that there are certain inherent risks and dangers associated with the Services; and that despite understanding the limited role of the Company as merely a platform, User knowingly and voluntarily, accept, and assume responsibility for, each of these risks and dangers, and all other possible risks and dangers. User further acknowledge that the Company is not responsible for the quality of the Services provided.
d.User understands that information learned or acquired during the provision of Services provided by Company, designed to diagnose, prevent, or treat any condition or disease or to ascertain the state of User’s health is intended for research, informational, and educational purposes only.
e.User gives permission to Company, its contractors, successors and assignees to perform image processing or analyzing services on images extracted from the videos captured by using the website or application.
f.User gives permission to Company, its contractors, successors and assignees to use any Image Data and other Personal Information (with personalized identifiable data removed) as publishable
material, marketing advertising material and/or for commercial use at any time including after the closure of User’s account.
g.User represents that he or she is eighteen (18) years of age or older.
h.User guarantees that any video or image provided either is his or her own; or, if User is agreeing to these TOS on behalf of a person for whom they have legal authorization, User confirms that the video or image of that person will be correctly represented or labeled.
i.Any User outside the U.S. that provides an image or video confirms that this act is not subject to any export ban or restriction in the country in which User resides.
j.User warrants that he or she is not acting on behalf an insurance company or an employer attempting to obtain information about an insured person or an employee.
k.User takes sole responsibility for all possible consequences resulting from sharing with others access to videos or images captured and Self-Reported Information.
l.User understands that all Personal Information will be stored in Company databases and will be processed in accordance with the Company Terms of Service.
m.Waiver of Property Rights. User understands that by taking images or videos with Company’s Services, or providing Self-Reported Information, he or she acquires no rights in any research or commercial products/services that may be developed by Company or its collaborating partners. User specifically understands that he or she will not receive compensation for any research or commercial products/services that include or result from any image, video or Self-Reported Information.
User agrees and warrants that he or she has the authority, under the laws of the state or jurisdiction of User’s residency, to provide these representations. In case of breach of any one of these representations Company has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services (or any portion thereof) and User agrees to defend and indemnify Company and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
7.ACCOUNT CREATION, CUSTOMER ACCOUNT, PASSWORD, AND SECURITY OBLIGATIONS.
a.In consideration of use of the Services, User agrees to: (1) provide true, accurate, current, and complete Registration Information as prompted by the Service; and (2) maintain and promptly update the Registration Information to keep it truthful, accurate, current, and complete. If any Registration Information is untrue, inaccurate, not current, or incomplete, or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Company has the right to suspend or terminate the associated account and refuse any and all current or future use of the Services (or any portion thereof).
b.After purchase of Services provided by Company, User will create a password and account designation. User is responsible for maintaining the confidentiality of the password and account and is fully responsible for all activities that occur under his or her password or account. If User allows third parties to access the Company website or mobile application through his or her username and password, User agrees to defend and indemnify Company and its affiliates against any liability, costs, or damages,
including attorneys’ fees, arising out of claims or suits by such third parties based upon or relating to such access and use. User agrees to: (1) immediately notify Company of any unauthorized use of his or her password or account, or any other breach of security; and (2) ensure that User exits from his or her account at the end of each session. Company cannot and will not be liable for any loss or damage arising from User’s failure to comply with this Section.
8.COMPANY WEB & MOBILE PRIVACY STATEMENT AND DISCLOSURE OF INFORMATION.
a.In order to use the Services, User must first acknowledge and agree to the Web & Mobile Privacy Statement (“Privacy Statement”). User cannot use the Services without first accepting the Privacy Statement. User can acknowledge and agree to the Privacy Statement by (1) clicking to accept or agree to the Privacy Statement, where this option is made available by Company for any Service; or by (2) actually using the Services.
b.User acknowledges and agrees that Company has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have in terms of usage of the Services, website, or other systems. Further, User acknowledges and agrees that Company is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (1) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that Company may owe pursuant to ethical and other professional rules, laws, and regulations; (2) enforce the Company TOS; (3) respond to claims that any content violates the rights of third parties; or (4) protect the rights, property, or personal safety of Company, its employees, its Users, its clients, and the public. In such event we will notify User through the contact information provided to us in advance, unless doing so would violate the law or a court order. User understands that the technical processing and transmission of the Services, including Personal Information, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks, or devices. Finally, Company may, in its sole discretion, restrict access to the website for any reason.
Please refer to Company’s Web & Mobile Privacy Statement to read about data protection related to storage and use information.
9.NO LICENSE FOR USE.
a.User acknowledges that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that User, and not Company, is entirely responsible for all User Content that is uploaded, posted, emailed, or otherwise transmitted via the Services.
b.User acknowledges that the Services content presented as part of the Services, whether original Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Company and/or the sponsors who provide that content to Company (or by other persons or companies on their behalf).
c.Company does not grant User a Use License to copy and distribute any of the Services content. User may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services
content (either in whole or in part) unless User has been specifically granted authorization in writing by Company or by the owners of that content, in a separate agreement.
10.USER CONDUCT – UNLAWFUL AND PROHIBITED USE.
a.As a condition of User’s use of the Services, User warrants to Company that the use will not be for any purpose that is unlawful or prohibited by these terms, conditions, or notices. User may not use the Services in any manner that could damage, disable, overburden, or impair the Services, or interfere with any other party's use and enjoyment of the Services. User may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. Furthermore, User agrees not to use the Services to: (1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (2) impersonate any person or entity, including, but not limited to, anyone affiliated with Company, or falsely state or otherwise misrepresent User’s affiliation with a person or entity; (3) add User’s own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (4) "stalk" or otherwise harass another; (5) upload, post, email, or otherwise transmit any content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (6) download any file posted by another user of the Services that User knows, or reasonably should know, cannot legally be distributed in such manner; (7) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of Company or any other party; (8) harm minors in any way; (9) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (10) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (11) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (12) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (13) violate this TOS, any code of conduct or other guidelines which may be applicable for any particular area of the Services or have been communicated to User by anyone affiliated with Company; or (14) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
b.User acknowledges and agrees that he or she is solely responsible for (and that Company has no responsibility to User or to any third party for) any breach of his or her obligations under the TOS and for the consequences (including any loss or damage which Company may suffer) of any such breach. In case of breach of any one of these agreements, Company has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services (or any portion thereof), and User agrees and promises to defend and indemnify Company and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
c.If User violates the terms of this Section and/or Company has a reasonable ground to suspect that User has violated the terms of this Section, Company has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services (or any portion thereof).
11.APPLICABLE LAWS AND REGULATIONS.
a.Recognizing the global nature of the Internet, User agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, User will comply with all applicable laws regarding the transmission of technical and any other data exported from the United States or the country from which User accesses Services online.
12.MATERIAL POSTED THROUGH THE SERVICES.
a.Company does not control any of User Content posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such non-Company content. User understands that by using the Services, he or she may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Company be liable in any way for any non-Company content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services.
b.User acknowledges that Company and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, Company and its designees shall have the right to remove any content that violates the TOS or is deemed by Company, in its sole discretion, to be otherwise objectionable. User acknowledges and agrees that User must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
13.MATERIAL PROVIDED TO COMPANY – USER’S PROPRIETARY RIGHTS.
a.User Content. Company does not claim ownership of User Content provided to Company (including feedback and suggestions) or posted, uploaded, inputted, or submitted to the Services. Unless otherwise specified, User retains copyright and any other rights User already holds over User Content that User creates and submits, posts, or displays on or through the Services. However, by submitting, posting, or displaying User Content, User gives Company, its affiliated companies, sublicensees and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any User Content that User submits, posts, or displays on or through the Services. User acknowledges and agrees that this license includes a right for Company to make such User Content available to other companies, organizations, or individuals with whom Company has relationships, and to use such User Content in connection with the provision of those Services.
b.User understands that Company, in performing the required technical steps to provide the Services to Users, may (a) transmit or distribute User Content over various servers, public networks and in various media; and (b) make such changes to User Content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media. User
acknowledges and agrees that this license shall permit Company to take these actions. User represents and warrants to Company that User has all the rights, power, and authority necessary to grant the above license.
c.Waiver of Property Rights. As stated above, User understands that by providing any sample, having images and video data processed, accessing Image Data, or providing Self-Reported Information, User acquires no rights in any research or commercial products/services that may be developed by Company or its collaborating partners. User specifically understands that User will not receive compensation for any research or commercial products/services that include or result from Image Data or Self-Reported Information.
a.User agrees to defend and hold Company, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content that User submits, posts to, or transmits through the Service; User’s use of the Service; User’s connection to the Service; User’s violation of the TOS; or User’s violation of any rights of another.
b.If User takes an image or video or otherwise uploads information, User will defend and hold harmless Company, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from analyzing User’s videos or images, which is disclosed to User consistent with our Terms of Service, or results from any third-party add-ons to tools provided by Company.
c.In addition, if User chooses to provide images and/or Self-Reported Information to third parties— whether individuals to whom User facilitates access, intentionally or inadvertently, or to third parties for diagnostic or other purposes—User agrees to defend and hold harmless Company, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of such image data and/or Self-Reported Information. Specifically, User agrees to defend and hold harmless Company, its employees, contractors, successors, and assigns from any and all liability for any damages resulting from advice acquired from a physician or other trained healthcare provider while using Internet or telemedicine or other electronic communication, or User’s failure to comply with advice provided by
Third Party Service providers.
15.NO RESALE OF SERVICES.
a.User agrees not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Services, use of the Services, or access to the Services.
16.GENERAL PRACTICES REGARDING USE AND STORAGE.
a.User acknowledges that Company may establish general practices and limits concerning use of the Services, including, without limitation, the maximum number of days that Personal Information and Services content will be retained by the Services, the maximum disk space that will be allotted on Company's servers on User’s behalf, and the maximum number of times (and the maximum duration for which) User may access the Services in a given period of time. User acknowledges and agrees that
Company has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of image data due to malfunction or destruction of data servers or other catastrophic events. User further acknowledges that Company reserves the right to change these general practices and limits in its sole discretion.
17.MODIFICATIONS TO SERVICES.
a.Company reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. User acknowledges and agrees that Company shall not be liable to User or to any third party for any modification, suspension, or discontinuance of the Services.
b.The Software that User uses may automatically download and install updates from Company. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. User agrees to receive such updates (and permit Company to deliver them) as part of User’s use of the Services.
c.User acknowledges that Company may offer different or additional technologies or features to collect and/or interpret image data in the future, and that User’s initial purchase of the Services does not entitle User to any different or additional technologies or features for collection or interpretation of Image Data without fee, and that User will have to pay additional fees in order to have Image Data processed, and/or interpreted using any future or additional technologies or features.
a.The TOS will continue to apply until terminated by either User or Company, as set out in this
b.To terminate a legal agreement with Company, User may do so by notifying Company at any time in writing, which will entail closing User’s accounts for all of the Services used by User. The notice should be sent, in writing, to Company's address, which is set out at the beginning of the TOS, or online via the website or mobile application. If notice is provided online, Company will send User an email asking that
User to confirm the request to close an account, and User’s notice will be effective following receipt of a second email confirmation from User.
c.Company may at any time, terminate its legal agreement with User (and in conjunction therewith,
User’s password and account(s)) if: (1) User has breached any provision of the TOS (or have acted in manner which shows that User does not intend to, or are unable to comply with, the provisions of the TOS); (2) Company is required to do so by law (for example, where the provision of the Services is, or becomes, unlawful); (3) the Third-Party or Medical Practice with whom Company offered the Services has terminated its relationship with Company or ceased to offer the Services to User; (4) Company decides to stop providing the Services to Users in the country or state in which User resides or from which User uses the Services; or (5) the provision of the Services to User by Company is, in Company's opinion, no longer commercially viable.
d.Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of User’s use of the Services may be referred to appropriate law enforcement authorities. User acknowledges and
agrees that Company shall not be liable to User or to any third party for any termination of User’s access to the Services, regardless of the reason for termination.
19.SURVIVAL OF TERMS.
When the TOS come to an end, all of the legal rights, obligations, and liabilities that User and Company have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Prerequisites); 4.(Description of the Services or Products); 5.(Risks and Considerations Regarding Company Services or Products); 6.(User Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(Company Terms of Service); 10.(User Conduct — Unlawful and Prohibited Use); 11.(Applicable Laws and Regulations); 12.(Material Posted through the Services); 13.(Material Provided to Company — User’s Proprietary Rights); 14.(Indemnity); 15.(No Resale of Services);18.(Termination); 19.(Survival of Terms); 20.(Dealings with Information Providers and Listed Resources); 21.(Hyperlinks and Company Website); 22.(Company Proprietary Rights); 23.(DISCLAIMER OF WARRANTIES); 24.(LIMITATION OF LIABILITY); 25.(Notice); 27.(Violation or Suspected Violation of TOS); and 28.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.
20.DEALINGS WITH INFORMATION PROVIDERS AND LISTED RESOURCES.
a.User’s correspondence or business dealings with—or participation in promotions of—information providers, vendors, and/or resources found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between User and such information provider or resource. User acknowledges and agrees that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Services.
21.HYPERLINKS AND THE COMPANY WEBSITE.
a.The Services provide, and third parties may provide, links to other sites and resources on the Internet. Because Company has no control over such sites and resources, User acknowledges and agrees that Company is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. User further acknowledges and agrees that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
22.COMPANY’S PROPRIETARY RIGHTS.
a.User acknowledges and agrees that Company (or Company's licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights which exist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). User further acknowledges that the Services may contain information which is designated
confidential by Company and that User shall not disclose such information without Company's prior written consent.
b.User acknowledges and agrees that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. User further acknowledges and agrees that information presented to User through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Company, User agrees not to—and not to permit anyone else to—modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services is the copyrighted work of Company and/or its suppliers.
c.Klinikals Technologies, LLC, Klinikals, and other Klinikals logos and product and service names are registered trademarks of Company and these marks, together with any other Company trade names, service marks, logos, domain names, and other distinctive brand features, are the "Company Marks". Unless User has agreed otherwise in writing with Company that nothing in the TOS gives User a right to use any Company Marks and User agrees not to display, or use in any manner, Company Marks.
d.User agrees that he or she shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Services.
e.Unless User has been expressly authorized to do so in writing by Company, User agrees that in using the Services, User will not use any trade mark, service mark, trade name, logo of any company, or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.
f.For any Software not accompanied by a License Agreement, Company grants User a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer. User may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless this is expressly permitted or required by law, or unless User has been specifically granted authority to do so, in writing. This license is for the sole purpose of enabling User to use and enjoy the benefit of the Services provided by Company, in the manner permitted by the TOS. Unless Company has given User specific permission in writing to do so, User may not assign (or grant a sublicense of) User’s rights to use the Software, grant a security interest in or over User’s rights to use the Software, or otherwise transfer any part of User’s rights to use the Software. User agrees not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. User agrees not to access the Services by any means other than through the interface that is provided by Company for use in accessing the Services. Any rights not expressly granted herein are reserved.
23.DISCLAIMER OF WARRANTIES.
a.ELECTRONIC MEDICAL RECORDS DISCLAIMER. ALL INFORMATION REGARDING THE ELECTRONIC MEDICAL RECORDS OF PATIENTS IS BASED ON INFORMATION PROVIDED TO USERs BY THIRD-PARTY
HEALTHCARE PROVIDERS AND SERVICE ENTITIES THROUGH THE PLATFORM. WE CANNOT GUARANTEE THAT THE INFORMATION IS ACCURATE, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS.
b.USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) USER’S USE OF THE SERVICES ARE AT USER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY 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, AND NON-INFRINGEMENT. (2) COMPANY MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET USER’S REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SERVICES WILL MEET USER’S
EXPECTATIONS; AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT USER’S OWN DISCRETION AND RISK, AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM COMPANY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) USER SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT USER OR THOSE FOR WHOM USER HAS LEGAL AUTHORITY. COMPANY DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM USER’S PARTICIPATION IN THE SERVICES AND,
THEREFORE, COMPANY SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS
RESULTING FROM USER’S PARTICIPATION IN THE SERVICES. USER’S FAILURE TO FULLY COMPLY WITH THE
TOS RESULTS IN THE AUTOMATIC TERMINATION OF ANY WARRANTY APPLICABLE TO THE SERVICES. (6) COMPANY MAKES NO WARRANTY FOR ANY SERVICES OBTAINED FROM THIRD PARTIES NOT AUTHORIZED BY COMPANY TO USE SERVICES PROVIDED TO USER BY COMPANY.
c.USER EXPRESSLY ACKNOWLEDGE THAT THE SERVICES, OR ANY PART THEREOF, ARE BEING PROVIDED BY COMPANY SIMPLY AS A TOOL FOR COMMUNICATION AND IT IS NOT BEING PROVIDED BY COMPANY TO USER AND/OR MEDICAL PRACTICE FOR THE MEDICAL ADVICE THAT USER AND/OR MEDICAL PRACTICE MAY PROVIDE TO PATIENTS, OR A THIRD-PARTY MAY PROVIDE TO USER AND/OR MEDICAL PRACTICE AND/OR THEIR PATIENTS, THROUGH USE OF IT. IN THIS RESPECT, COMPANY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER FOR ANY MEDICAL ADVICE THAT MAY BE PROVIDED TO OR BY USER AND/OR MEDICAL PRACTICE OR A THIRD-PARTY THROUGH USE OF THE SERVICES BY USER OR MEDICAL PRACTICE.
24.LIMITATION OF LIABILITY.
a.WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPANY 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION USER TAKES OR FAILS TO TAKE BASED ON THE INFORMATION RECEIVED FROM MEDICAL PRACTICES THROUGH OR FROM THE SERVICES; (c) USER’S FAILURE TO KEEP USER’S PASSWORD
OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (d) THE COST OF PROCUREMENT OF SUBSTITUTE
GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; OR (g)
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
a.Notices to User may be made via either email or regular mail. Company may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to User generally on or through the Services.
Official notices related to this TOS must be sent to Company at:
Klinikals Technologies, LLC
ATTN: Legal Counsel
300Delaware Avenue, Suite 210-A Wilmington, DE 19801
Additionally, Company accepts service of process at this address. Any notices provided without compliance with this section on Notices shall have no legal effect.
26.CHANGES TO THE TERMS OF SERVICE.
a.Company may make changes to the TOS from time to time. When these changes are made, Company will make a new copy of the TOS available on its website and any new additional terms will be made available to User from within, or through, the affected Services.
b.User acknowledges and agrees that Company may treat any use of the Services after the date on which the TOS have changed as an acceptance by User of the updated TOS in effect as of the date of User’s usage.
27.VIOLATION OR SUSPECTED VIOLATION OF TERMS OF SERVICE.
a.If User violates the terms of these TOS and/or Company has reasonable grounds to suspect that User has violated these TOS, Company has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services (or any portion thereof).
a.Entire Agreement. The TOS constitute the entire agreement between User and Company and govern User’s use of the Services, superseding any prior agreements between User and Company on this subject. User also may be subject to additional terms and conditions that may apply upon the use of affiliate services, third-party content, or third-party software.
b.Applicable law and arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with Company arising out of or relating to the Agreement ("Disputes") shall be governed by Delaware law regardless of User’s country of origin or where
User accesses Company, and notwithstanding of any conflicts of law principles. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in New Castle County, Delaware, with a written decision stating legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
c.Waiver. The failure of Company to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
d.Term for cause of action. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one
(1) year after such claim or cause of action arose or be forever barred.
e.Admissibility of printed version. A printed version of this agreement, and of any notice given in electronic form, shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
f.Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
g.Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.
h.Amendments. We reserve the right to modify, supplement, or replace the terms of the Agreement, effective upon posting at www.Klinikals.com or notifying User otherwise. If User does not want to agree to changes to the Agreement, User can terminate the Agreement at any time per Section 18 (Termination).
i.Assignment. User may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to User. We may also substitute, by way of unilateral novation, effective upon notice to User, Company for any third party that assumes our rights and obligations under this Agreement.
29.PAYMENT AND ECOMMERCE POLICY.
Company uses a secure, third-party service for credit card processing and accepts the following forms of payment: Visa, MasterCard, American Express, JCB, Discover, and Diners Club. As part of the Service process, the User agrees to allow Company to store the payment card or payment method for future service interactions made through the Company website or mobile application that have proper account authentication. Once services are engaged, the User recognizes that they are contractually bound to the Company for their entire bill. All fees paid are nonrefundable and must be paid in full. It is further
understood and agreed that if User or any third party paying fees for User pays such fees through the use of a debit card, credit card, or other electronic means, such payments cannot be revoked or reversed in any manner by the User or third party.
30.PRICING. Company reserves the right to change the Service’s prices at any time without further
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