THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL.
PLEASE READ IT CAREFULLY BEFORE AGREEING.
Terms of Service
Last updated: March 1, 2023
Qoolo, Inc. (hereinafter “Qoolo,” “we” or “us”) provides QClinical.io and QClinical.app (each a “Site” and together the “Sites”), and the associated data, services, information, tools, functionality, updates, and similar materials (collectively, the “Service”), subject to your agreement to and compliance with the conditions set forth in this Terms of Service agreement (the “Agreement”).
This Agreement sets forth the legally binding terms and conditions governing your access to and use of the Service. By accessing or using the Service or otherwise entering into this Agreement, you are creating a binding contract with us. If you do not agree to these terms and conditions, you may not access or use the Service.
We may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions, which may be through posting to the Service or otherwise. Your continued access to or use of the Service following our notice of changes to this Agreement (or other acceptance method) means you accept such changes. Please refer to the “Last updated” date above to see when the Agreement was last updated.
1. Incorporated Terms
2. Right to Access
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive right to access and use the Service for your internal business purposes only. No rights not explicitly listed herein are granted.
3. User Eligibility
Users on the Service may be businesses, or users given access to the Service by such businesses (collectively, “Users” or “you”). When used in this Agreement, “you” shall refer to the User individually, as well as in their capacity as an agent or representative of any business that such User represents, if any.
Some parts of the Service may be intended for use solely by (i) employees or representatives of sponsors of clinical trials (“Sponsors”); (ii) employees or representatives of third parties that conduct clinical trial activities on behalf of Sponsors (“Clinical Sites”); or (iii) individual participants in a clinical trial (“End User” and together with the Sponsors and Clinical Sites, the “Users”); and as such, not all parts of the Service may be available to all Users or to the general public. We maintain the right to impose eligibility rules and limitation on User’s access to certain Services from time to time. We reserve the right to amend or eliminate these eligibility requirements at any time.
By requesting to use, registering to use and/or using the Service, you represent and warrant that you (i) are at least eighteen (18) years old; (ii) have the right, authority, and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof; (iii) are properly licensed, permitted and qualified as required in your applicable jurisdiction to conduct yourself as a User; and (iv) are not a competitor of Qoolo.
4. Important Notices
We do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that Users will be able to access or use the Service, or its features, at all times.
The Service may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any such errors, inaccuracies, or omissions and to change or update information at any time without prior notice, even if your order has already been accepted or processed.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
We do not provide medical or other healthcare services and are not licensed to practice medicine. We do not recommend or endorse any specific drugs, tests, healthcare providers, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on the Service, and we assume no responsibility for such information. Any information provided via the Service is for informational purposes only and does not constitute medical or any other professional diagnosis or treatment or suggest or propose a specific course of action. The Service is not intended to provide advice or guidance concerning the medical treatment or diagnosis of any person, nor is it intended as a substitute for the professional judgment of a healthcare professional when diagnosing or treating patients. End Users are solely responsible for their decision to use the Service, evaluating the information obtained through the Service, and for their decision to use such information in connection with treatment decisions and otherwise. End Users’ use of the information obtained through the Service is solely at their own risk, and End Users agree that we and our licensors are not responsible or liable for any claim, loss, or damage arising from the use of such information.
The Service may be accessed on the premises, or using the systems, of Clinical Sites. We are not responsible for any conditions or defects on Clinical Site’s premises, the safety or security of Clinical Site’s premises or systems, or occurrences related to Clinical Site’s premises or systems.
We do not credential, accredit or determine the qualifications of the practitioners, healthcare providers or facilities that may use the Service. We make no claim or representation regarding, and accept no responsibility for, the quality or reliability of any services or products provided by third parties using the Service. We do not endorse or warrant the accuracy or reliability of any advice, opinion, test results, statement or other information displayed, distributed or otherwise accessible on or through this Platform.
We do not sponsor or provide regulatory or clinical services related to clinical trials facilitated by, or described on, the Service. We make no claim or representation regarding, and accept no responsibility for, any such clinical trials. We do not endorse or warrant the efficacy or appropriateness of any clinical trial facilitated by, or described on, the Service.
THE SERVICE HAS NOT BEEN FDA APPROVED AS A MEDICAL DEVICE, AND IS NOT INTENDED TO BE USED FOR MEDICAL PURPOSES, INCLUDING USE IN THE DIAGNOSIS, MONITORING, TREATMENT, CURE OR PREVENTION OF DISEASE IN, OR STATES OF HEALTH OF, HUMANS OR OTHER ANIMALS. YOU MAY NOT, AND SHALL NOT PERMIT OTHERS, TO USE THE SERVICE IN CONNECTION WITH MEDICAL PURPOSES, INCLUDING USE IN THE DIAGNOSIS, MONITORING, TREATMENT, CURE OR PREVENTION OF DISEASE IN, OR PHYSIOLOGICAL STATUS OF, ANY HUMANS OR OTHER ANIMALS.
5. Rules of Conduct
Your access to and use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree not to distribute, upload, make available or otherwise publish through the Service any information, ideas, text, suggestions, comments, questions, messages, tags, causes, promotions, documents, links, or similar materials (“Submissions”) that:
- are unlawful or encourage another to engage in anything unlawful;
- contain a virus or any other similar programs or software which may damage the operation of our or another’s computer;
- violate the rights of any party or infringe upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; or
- are libelous, defamatory, pornographic, obscene, lewd, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening, or bullying.
You further agree that you will not do any of the following:
- breach, through the Service, any agreements that you enter into with any third parties;
- stalk, harass, injure, or harm another individual through the Service;
- modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Service;
- interfere with or disrupt the operation of the Service, including restricting or inhibiting any other person from using the Service by means of hacking or defacing;
- transmit to or make available in connection with the Service any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
- attempt to probe, scan or test the vulnerability of a system or network of the Service or to breach security or authentication measures without proper authorization;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- harvest or collect the email address, contact information, or any other personal information of other users of the Service;
- use any means to crawl, scrape or collect content from the Service via automated or large group means;
- submit, post, or make available false, incomplete or misleading information to the Service, or otherwise provide such information to us;
- register for more than one user account;
- impersonate any other person or business;
- access or attempt to access any portion of the Service that is not public; or
- override or attempt to override any security measures in place on the Service.
You must keep your username, password and any other information needed to log in to the Service, if applicable, confidential, and secure. We are not responsible for any unauthorized access to your account or profile by others.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service.
Clinical Sites, and/or End Users, may be issued devices that facilitate transmission of Clinical Trial Data (as defined herein) from End Users to the Service (“Platform Assist Devices”). You agree that all Platform Assist Devices are owned by us and leased by Sponsor. Upon the completion of the applicable clinical trial or the expiration or termination of your use of the Service, you shall return the Platform Assist Devices to us or Sponsor on our behalf, or if you are an End User, to the applicable Clinical Trial Site on our behalf. You agree to reimburse us for (a) any unreturned Platform Assist Devices and (b) any Platform Assist Devices returned in destroyed or inoperable condition, in each case, in an amount equal to the full replacement cost of each such device.
Notwithstanding anything herein to the contrary, we reserve the right, in our sole discretion, to protect Users from violators and violations of these rules of conduct, including but not limited to restricting your access to and use of the Service, restricting or terminating your ability to upload to the applicable website or platform, immediately terminating your access to the Service, or terminating your access to the Service by blocking certain IP addresses from accessing the Service. Notwithstanding the foregoing, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
6. Submissions Submitted or Made Available to Us
Submissions that consist of or include information or data relevant to a clinical trial, or that is solicited or collected on behalf of a Sponsor for a clinical trial, are “Clinical Trial Data”. Clinical Trial Data is the exclusive property of the Sponsor, and you hereby assign to Sponsor all right, title and interest in such Clinical Trial Data and all intellectual property rights thereto, or subsisting therein. All Clinical Trial Data uploaded to the Service will be used in accordance with the applicable Subscription Agreement.
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, or other materials you submit, post, or make available to or on the Service. In addition, we do not pre-screen any Submissions or materials, but we reserve the right to refuse, withhold, remove and or discard any such material at any time.
By submitting any Submissions to us you hereby agree, warrant and represent that: (a) the Submissions do not contain proprietary or confidential information, and the provision of the Submissions is not a violation of any applicable law or any third-party’s rights; (b) all such Submissions are complete, accurate and true, (c) we are not under any confidentiality obligation relating to the Submissions; (d) we shall be entitled to use or disclose the Submissions in any way; (e) you are not entitled to compensation or attribution from us in exchange for the Submissions; and (f) to the extent required, you have obtained all requisite consents and permissions for you and us to use the Submissions with respect to the Service and the Agreement.
You understand that by sharing information or Submissions on the Service, by participating in the Service, and by requesting information to be sent through, or downloading information from, the Service, you may be revealing information about yourself, the entity that you represent, or your business that may include financial, credit, or similar information, including with other Users. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials and using the Service, and you agree that we shall not be held responsible, and we shall be released and held harmless by you from any liability or damages arising out of such conduct.
Certain Submissions submitted by Sponsors are governed by the terms and conditions of the Subscription Agreement.
7. Intellectual Property
Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design, and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks, and service marks (“Qoolo Marks”) are our property or the property of their respective owners, as indicated. You may not use the Qoolo Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections, or modifications) and any and all documentation therefor, are and shall remain our sole and exclusive property or that of our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
8. Data Collection and Use
9. Enforcement and Termination
We reserve the right to deny all or some portion of the Service to any User, in our sole discretion, at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to us related to Submissions or other materials, including but not limited to copyright licenses, shall survive any termination or expiration of this Agreement. Further, your representations, defense and indemnification obligations survive any termination or expiration of this Agreement.
10. Links and Third-Party Content
The Service may contain links to the sites or materials of third parties. Such links are provided for informational purposes only, and we do not endorse any website or services through the provision of such a link. The Service may contain articles, text, imagery, video, audio, data, information, and other similar materials originating from third parties. We do not endorse any third party content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted, or otherwise edited by us.
To the extent that you use any functionality of the Service to link to or submit third party Submissions or other materials or information, you shall obtain all requisite consents and permissions for you and us to use those materials with respect to the Service and the Agreement.
11. DISCLAIMERS AND LIMITATION ON LIABILITY
EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND WE, AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICE. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
FURTHER, OPINIONS, ADVICE, STATEMENTS, OFFERS, SUBMISSIONS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICE, BUT NOT DIRECTLY BY US, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT BE RELIED UPON. WE HAVE NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF SUCH CONTENT AND MAKE REPRESENTATIONS ABOUT SUCH CONTENT. THE RESPECTIVE AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS THAT YOU MAKE BASED UPON SUCH CONTENT.
ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then, to the maximum extent permissible by law, you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of the greater of (a) $500.00 or (b) the amounts paid to, or by, you through the Service within the last six months, or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service or any goods sold or provided by us. This limitation shall apply regardless of the basis of your claim, whether other provisions of this Agreement have been breached, or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that cannot be disclaimed in this Agreement. SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and our affiliates, subsidiaries, suppliers, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation (“Costs”) arising out of or based on: (a) Submissions you submit, link to, post to or transmit through the Service; (b) your access to or use of the Service; (c) your violation of this Agreement; (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the access to or use of the Service; (e) allegations that Submissions you submit, link to, post to or transmit through the Service infringes the intellectual property rights of, or violates other rights of, a third party; or (f) in the case of Clinical Sites, any injury or damage alleged to have been suffered as a result of End Users‘ use or consumption or the Clinical Sites’ administration of any materials, products or devices as a part of the services that you provide (g) any injuries or damages related to Clinical Sites’ or End Users’ use of the Platform Assist Devices (h) with respect to Clinical Sites, any allegations of bodily injury, death of any person, or damage to real or tangible, personal property occurring during the performance by Qoolo of any services on-site on such Clinical Sites’ premises. In the case of subsection (e), Costs shall include but not be limited to, any of our expenses related to responding to or complying with third party notices or demands.
13. Governing Law and Jurisdiction; Arbitration
You agree that any claim or dispute arising out of or relating in any way to the Service will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send an email requesting arbitration and describing your claim to firstname.lastname@example.org.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in New York, New York. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You and Qoolo agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Qoolo agree that each have waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Service, or to us, may only be brought by you in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
14. Policies for Children
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement is subject to change on a prospective basis at any time. In the event that we change this Agreement, you may be required to re-affirm the Agreement through use of the Service or otherwise. Your access to and use of the Service after the effective date of any changes will constitute your acceptance of such changes.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
No Waiver. ur failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and sent via email to email@example.com.
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral, or written.
Force Majeure. In no event shall we or our affiliates be liable to you for any damage, delay, or failure to perform resulting directly or indirectly from any event outside of our reasonable control or any force majeure event.
16. Copyright Policy
If you believe in good faith that any material posted on our Service infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
· A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
· Identification of the copyrighted work claimed to have been infringed;
· Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
· Information reasonably sufficient to permit us to contact you;
· A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
· A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
174 Nassau Street #424
Princeton, NJ 08542
17. Complaint Policy (Including Trademark and Privacy)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to firstname.lastname@example.org containing the following information:
· Your name, physical address, e-mail address and phone number;
· A description of the material posted on the Sites that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed;
· Identification of the location of the material on the Sites; · If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated;
· If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief;
· A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and
· Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.