Qure4u resells certain remote patient monitoring tools (the “Tools”) from third party manufacturers (“Third Party Manufacturers”) that provide certain data regarding Customer’s patients to whom Customer has provided a Tool or Tools (the “Patient Data”) (for example, but not limited to, BG, BP, Weight, etc.), and Qure4u also offers certain services related to such Patient Data (the “Services”) (for example but not limited to, monitoring Patient Data and notifying Customer when Patient Data falls outside Customer set parameters, etc.).
The Tools are intended to be used by a patient in conjunction with a healthcare professional for periodic evaluation and remote monitoring of Patient Data.
Once Customer has identified one or more of patients as individuals who may benefit from use of the Tool(s) and before Customer make the Tool(s) available to him/her, it is Customer’s responsibility to ensure that the patients is advised on the use of the Tool(s. As between Customer and Qure4u, Customer will be responsible for obtaining all necessary consents from the patient regarding his/her use of the Tool(s), including with respect to the collection, de-identification, and use of patient data.
The Tools or Services, and Patient Data are not a replacement for a physical examination by a trained healthcare provider and should not be used independently to diagnose or treat diseases or conditions. The Tools or Services, and Patient Data should not be used to evaluate overall patient health. The quality or accuracy of the Tools or Services, and Patient Data may be affected, for example, by a patient’s use of the Tools, mobile connectivity, internet connectivity, Third Party Manufacturer’s software, or Qure4u’s Platform or Services. Customer should examine the quality Patient Data before using it.
The Tools or Services, and Patient Data are not, and do not provide, medical advice, service, or care. Customer should not solely rely on the Tools or Services, and Patient Data for the diagnosis or treatment of any health problem or disease. Customer should exercise professional judgment and advise that the patient consult Customer or another qualified healthcare provider on a regular and appropriate basis.
2.0 PATIENT DATA.
The Tools may transmit Patient Data relating to Customer patients to Customer, and Qure4u may be provided (or provide) other data by Customer or Customer patients, solely as permitted by applicable laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The privacy and security of such data will be protected by Qure4u, and such data will be subject to the terms of our HIPAA Business Associate Agreement.
3.0 TOOLS, SERVICES, AND PATIENT DATA.
Customer understands that the Tools or Services, and Patient Data are evolving and may not be available. As a result, Qure4u may require Customer to accept updates to the Services that Customer has used. Customer acknowledges and agrees that Qure4u may update the Services with or without notifying Customer. Customer may need to update third-party software from time to time in order to access or use the Tools or Services, and Patient Data.
4.0 Certain Restrictions.
5.1 Qure4u Intellectual Property.
Except with respect to Customer patients’ personally identifiable data and medical advice, Customer agrees that Qure4u and its Third Party Manufacturers own all rights, title and interest in and to the Tools and Services and all intellectual property rights related to the Tools and Services.
Qure4u related graphics, logos, service marks and trade names used on or in connection with the Tools or Services are owned by Qure4u and may not be used without permission. Other trademarks, service marks and trade names are the property of their respective owners.
Customer agrees that submission of any ideas, suggestions, documents, and/or proposals to Qure4u through its suggestion, feedback, forum or similar pages (“Feedback”) is at Customer’s own risk and that Qure4u has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. Customer represents and warrants that Customer has all rights necessary to submit the Feedback. Customer hereby grants to Qure4u a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
5.4 Analytics and Improvements.
Subject to applicable laws and regulations, Customer agrees that Qure4u may de-identify and/or aggregate, and analyze, any Patient Data, data, or information Customer provides Qure4u through the use of the Services relating to the efficacy, functions, or features of the Tools or Services, and agrees that Qure4u exclusively owns such de-identified and/or aggregated data and any improvements or new products or services arising therefrom.
7.0 DISCLAIMER OF WARRANTIES.
7.1 AS IS.
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER USE OF THE TOOLS, SERVICES, AND PATIENT DATA IS AT CUSTOMER’S SOLE RISK, AND THE TOOLS, SERVICES, AND PATIENT DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE QURE4U PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.2 No Liability for Conduct of Third Parties.
CUSTOMER ACKNOWLEDGES AND AGREE THAT THE QURE4U PARTIES ARE NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD THE QURE4U PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PATIENTS OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF HARM OR INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER AGREES THAT QURE4U WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DEVICES, GOODS, RPM SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD PARTY MANUFACTURERS, OR FOR ANY DAMAGES OR LOSSES CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE DEVICES, CONTENT, OR BUSINESS PRACTICES OF ANY THIRD-PARTY.
(a) QURE4U MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE TOOLS PATIENT DATA SERVICES OR PATIENT DATA WILL BE APPROPRIATE FOR CUSTOMER OR CUSTOMER’S PATIENTS OR MEET CUSTOMER REQUIREMENTS OR CUSTOMER PATIENTS’ REQUIREMENTS; (2) CUSTOMER’S USE OF THE TOOLS, SERVICES OR PATIENT DATA WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE TOOLS, SERVICES, OR PATIENT DATA; OR (4) ANY ERRORS WILL BE CORRECTED. THE TOOLS ARE NOT A REPLACEMENT OF A PHYSICAL EXAMINATION BY CUSTOMER OR ANOTHER TRAINED HEALTHCARE PROVIDER AND SHOULD NOT BE USED INDEPENDENTLY TO DIAGNOSE OR TREAT DISEASES OR CONDITIONS.
(b) QURE4U DOES NOT GUARANTEE THE EFFICACY OF THE TOOLS, SERVICES OR PATIENT DATA OR ANY INFORMATION PROVIDED THROUGH SUCH TOOLS, SERVICES, OR PATIENT DATA. NO RESULTS OF ANY KIND ARE GUARANTEED.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM QURE4U OR THROUGH THE TOOLS, SERVICES, OR PATIENT DATA WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.0 LIMITATION OF LIABILITY; RELEASE.
8.1 Disclaimer of Certain Damages.
CUSTOMER UNDERSTANDS AND AGREES THAT IN NO EVENT SHALL THE QURE4U PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE TOOLS, SERVICES, OR PATIENT DATA WHETHER OR NOT THE QURE4U PARTIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TOOLS, SERVICES, OR PATIENT DATA WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability.
UNDER NO CIRCUMSTANCES WILL THE QURE4U PARTIES BE LIABLE TO CUSTOMER FOR AN AMOUNT TO EXCEED ONE HUNDRED DOLLARS ($100) OR THE AMOUNTS CUSTOMER PAID QURE4U FOR THE TOOLS, SERVICES, AND PATIENT DATA DURING THE PRIOR TWELVE (12) MONTHS, IF ANY.
Customer hereby releases, waives, relinquishes and forever discharges Qure4u from every past, present and future claim, demand and right of action of every kind and nature, known or unknown, related to Customer reliance on the Tools, Services, or Patient Data to provide medical care to Customer patients.
9.0 TERM AND TERMINATION.
9.2 Termination of Services by Qure4u.
9.3 Termination by Customer.
If Customer wants to terminate the use of remote patient monitoring Tools and Services, Customer may do so upon 90 days prior written notice to Qureu4 and after informing Customer patients using the Tools to cease use of the Tools, and ceasing Customer use of the Tools, Services, and Patient Data.
9.4 Effect of Termination.
10.0 INTERNATIONAL USERS.
The Tools and Services are intended for use in the United States of America only. Data is controlled and stored by Qure4u and its service providers from facilities in the United States of America. Qure4u makes no representations that Tools or Services are appropriate or available for use in other locations. Those who access or use the Tools or Services from other jurisdictions do so at their own volition, are responsible for compliance with local law, and hereby grant Qure4u consent to transfer such data to the United States.
11.1 Applicability of Arbitration Agreement.
11.2 Arbitration Rules.
11.3 Authority of Arbitrator.
11.4 Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.
11.5 Small Claims Court.
Notwithstanding the foregoing, either Customer or Qure4u may bring an individual action in small claims court.
11.6 Emergency Injunctive Relief.
Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
12.0 GENERAL PROVISIONS.
12.1 Electronic Communications.
To the maximum extent permitted by law, Customer (1) consents to receive communications from Qure4u in an electronic form; and (2) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Qure4u provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights.
12.4 Limitations Period.
12.5 Governing Law.
12.9 Export Control.
Customer may not use, export, import, or transfer the Tools or Services except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the Tools and Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Qure4u is subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Qure4u products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.10 Entire Agreement.