Effective Date: June 1, 2021 (prior version)
Welcome to the xCures platform, a service of xCures, Inc. (“xCures”, “we”, “us” or “our”). Through the platform, xCures provides services for patients with advanced cancer, and their treating physicians, to discover treatment options, and to help patients enroll in sponsored clinical trials, studies and patient support programs. Patients receive a personalized Cancer Journey, representing a structured report of consolidated information from medical records that xCures gathers on behalf of, at the direction of and under the control of patients. These and other services that link to these Terms are referred to as a “service” or “services”.
If you are a visitor to a website or other online resource that links to these Terms, and have not created an account with us, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THOSE ONLINE RESOURCES.
BE ADVISED: THESE TERMS INCLUDE A SECTION CONTAINING A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES ARE RESOLVED. YOU MAY OPT OUT OF THESE PROVISIONS, BY FOLLOWING THE PROCEDURES OUTLINED IN THAT SECTION.
IF YOU ARE AGREEING TO THESE TERMS IN YOUR INDIVIDUAL CAPACITY, YOU AGREE TO BE INDIVIDUALLY BOUND BY THEM.
IF YOU ARE AGREEING TO THESE TERMS AND CONDITIONS ON BEHALF OF ANOTHER INDIVIDUAL OR LEGAL ENTITY, YOU REPRESENT THAT YOU ARE LEGALLY AUTHORIZED TO CONTRACTUALLY OBLIGATE THAT INDIVIDUAL OR LEGAL ENTITY TO THESE TERMS. IF YOU MISREPRESENT THAT AUTHORITY, YOU ACCEPT LIABILITY TO xCURES AS OUTLINED HEREIN, UNDER THE SECTIONS TITLED “LIMITATIONS OF LIABILITY” AND “INDEMNIFICATION”.
2. Consent to Electronic Transactions
Our services frequently collect legally binding consents and other agreements using electronic signatures that are binding per 15 U.S.C § 7001- 7006 (the federal E-SIGN Act). These electronic signatures, represented by the unique identifiers and passwords associated with your account, as applicable, bear the same legal authority as your written signature, and are binding per 15 U.S.C § 7001- 7006.
3. Account Creation
Account login credentials (“credentials”) issued to you by xCures are intended to be used only by you in your individual capacity. Because these credentials will be used to electronically sign legal documents, they are not intended for use by multiple individuals. You are responsible for maintaining the confidentiality of your credentials, and agree not to provide them to any third party.
You are responsible for all statements made and acts or omissions that occur while your credentials are being used. You are responsible for any breach of security caused by your failure to maintain the confidentiality of your credentials.
You agree to notify xCures immediately in the event of loss or theft of your credentials, or if you believe the confidentiality of your credentials has been compromised in any way, or in the event of your learning about a possible or actual unauthorized use of the service.
xCures reserves the right to suspend or revoke your credentials and/or access to services at any time without prior notice for your failure to comply with these Terms, or where xCures reasonably determines that your access would present an unacceptable level of risk to the security of xCures systems or the confidentiality of individually identifiable information or data.
4. Minimum service Requirements
To access a service, you will need access to the internet, a computer, and an account that gives you access to services. You understand that you must, at your own expense, provide all internet, telephone and other equipment and services necessary to access and use our services. Standard mobile messaging rates may apply. We are not responsible for the fees that you incur from unrelated third parties, including internet or cellular service providers or consumer app developers that operate websites or applications that link to our service.
If you provide your mobile phone number in your account, we may send you messages, provided these messages are limited to information that cannot be used to infer your health status. You can opt out of receiving these messages by following the prompts in the SMS text notifications.
By providing a phone number, you represent and warrant that the phone number may be used to send you text messages, and that you are authorized to give consent for these text messages to be sent to that number. You also agree that xCures is not responsible for the security of transmissions of text messages to mobile phones or other devices that do not support password protection or encryption.
5. Conditions of Access
The rights granted to you by xCures under these Terms are conditioned upon your compliance with these Terms, including the following terms and conditions:
You will not:
- sell, rent, lease, sublicense, redistribute, or syndicate access to the services to third parties;
- access the services or materials associated with any service in violation of any law or regulation;
- access any services in any manner that –
(i) compromises, breaks or circumvents any of our technical processes or security measures associated with the services,
(ii) poses a security or privacy vulnerability to customers or users of the services, or
(iii) tests the vulnerability of our systems or networks;
- access any services or documentation in order to replicate or compete with the services;
- attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of any service;
- permit the international transfer of personal data, except in compliance with applicable laws;
- delete or in any manner alter the trade names, trademarks, service marks, logos, domain names, and other branding of xCures, its partners, or other third parties.
Further, you agree to promptly notify xCures in writing via email to email@example.com of any known or suspected compromise of personal information of patients whose personal data is stored by the services.
6. Data Use and Privacy
7. Ownership and Proprietary Rights
- Feedback. We welcome any recommendations, suggestions, improvement or correction requests, comments, or other feedback from you or about the service (collectively, “feedback”). Please know, however, that by submitting feedback to us, you agree that: (1) feedback will be treated as xCures’ proprietary information; (2) we may use or disclose, or choose not to use or disclose, feedback for any purpose and in any way; and (3) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for feedback.
- Reservation of Proprietary Rights. All rights not granted by the parties under these Terms are expressly reserved. Without limiting the generality of the foregoing, xCures owns and retains all right, title and interest in and to the services and the underlying programs, know-how, the software, documentation and other company proprietary information, all of which is confidential and/or proprietary to xCures, and protected under applicable laws including without limitation the U.S. Copyright Act and state and federal trade secret laws.
- No Assignment. Except as otherwise provided in these Terms, no intellectual property rights are assigned by either party hereunder.
8. Beta Offerings
From time to time, xCures may make new features or functionality within the service available to you, which are identified as alpha, beta, not generally available, limited release, early access, or preview (collectively, “beta offerings”). You may choose to use beta offerings at your sole discretion. xCures may discontinue beta offerings at any time, at our sole discretion, and decide not to make a beta offering generally available.
This Agreement does not entitle you to any support, upgrades, patches, enhancements, or fixes (collectively, “technical support”). xCures may, at its sole discretion, provide technical support services, and any such services shall become subject to these Terms. You agree to report to xCures any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties, including without limitation, those related to interoperability. You agree that xCures shall be free to use, disclose, reproduce, license, distribute and otherwise exploit any such reports (and any other suggestions, improvements or ) that you provide to xCures, without obligation or restriction of any kind on account of intellectual property rights or otherwise.
All service, documentation and information contained in or associated with the platform are provided or made available by xCures “As Is”, “As Available”, and with all faults. Information obtained by you will not create any warranties. You assume all risks associated with your access and use of any services. If you are a physician, it is your sole responsibility, in consultation with your patient, to determine the suitability and adequacy of any and all treatment recommendations and clinical trials or studies. If you are a patient, you should seek the advice of your physician to determine the suitability and adequacy of treatment options and clinical trials and studies discovered through your use (or your physician’s use) of the services.
- Does not assume any responsibility or risk for your use of any service.
- Does not make any express or implied warranties, representations or endorsements whatsoever (including, without limitation, warranties of title, merchantability, quality of information, non-infringement, or fitness for a particular purpose) with regard to the services, any information or service provided through the services or on the Internet generally, and will not be liable for any cost or damage arising either directly or indirectly from your use of the services.
- Does not warrant that the services or information therein will be free from spyware, malware, adware, viruses, worms or other malicious code.
- Does not warrant the accuracy, completeness, timeliness, or usefulness of any information, opinions, advice, services, merchandise or any other information provided through the service or on the Internet generally. Data is only as up to date as the data within xCures systems.
- Does not warrant that the service will work on your hardware, operating systems or with any other software installed on your devices.
- Is not responsible for any actions taken by others with respect to your data, including any privacy or security practices of a physician or other third party once a patient’s data has been transmitted to that physician or third party. We strongly encourage you to carefully read your physician’s HIPAA notice of privacy practices or other terms and conditions of any third party you select to receive your data through the services.
- Is not responsible for any changes that may be required by your Internet service Provider (ISP).
- Will in no event be liable to you or anyone else for any decision made or action taken by you or anyone else in reliance upon the information provided through the services.
- Will under no circumstances and under any legal theory, tort, contract, or otherwise, be liable to you or any other person for any indirect, special, incidental, or consequential damages or losses of any character whatsoever with regard to the services.
11. Term; Termination
These Terms remain effective until terminated by either party. If you no longer agree to be bound by these terms, you must cease your use of the services. If you breach any provision of these Terms, then you may no longer use any service.
If these Terms are terminated for any reason, then: (a) these Terms will continue to apply and be binding upon you in respect of your prior use of any service (and any unauthorized further use of the service); and (b) any rights or licenses granted to us under these this Agreement will survive such termination.
13. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL xCURES OR ITS SUPPLIERS OR VENDORS, OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS, CO-BRANDERS OR PARTNERS (COLLECTIVELY, THE “xCURES PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, OPERATION OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, ANY DEFECTS IN THE SERVICE, OR WITH THE PROVISION OF, OR FAILURE TO MAKE AVAILABLE, ANY INFORMATION, SERVICES, PRODUCTS, MATERIALS, OR OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
xCures shall not be liable in any way to you or anyone else who may use the information or content or to whom the information or content may be furnished, for any delays, inaccuracies, unavailability, errors, or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damage arising therefrom or occasioned thereby.
THE OPERATION OF THE SERVICES MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND xCURES’ CONTROL. THE OPERATION OF THE SERVICE, WHETHER BY xCURES, ITS SUPPLIERS OR ITS VENDORS, MAY NOT BE SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION AND ANY OTHER SECURITY MEASURES MAY NOT PREVENT UNAUTHORIZED ACCESS TO MATERIALS YOU MAY USE OR ALLOW OTHER PERSONS TO USE IN CONNECTION WITH THE SERVICE, INCLUDING MATERIALS POSTED OR SUBMITTED TO THE SERVICE.
You acknowledge and agree that the limitations set forth above are fundamental elements of these Terms and the services would not be provided to you, absent such limitations.
You hereby agree to indemnify, defend, and hold the harmless the xCures Parties from any liability, loss, claim, and expense (including reasonable attorneys’ fees) related to or arising out of your use of the content on the service, or any information that you submit, post, or transmit through the service, your use of the service, your connection to the service, your violation of these Terms, or your violation of any rights of another.
15. Force Majeure
Neither we nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
16. Relationship of the Parties
You acknowledge that xCures is an independent contractor. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
17. Third Party Beneficiaries
here are no third party beneficiaries of these Terms.
When you send emails or other electronic messages to us or in connection with the service, you are communicating with us electronically and consent to our review and analysis of such messages and to receive return communications, if any, from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you through the email address and mailing address you provide through the service satisfy any legal requirement that such communications be in writing.
19. Export Control and Sanctions
You will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the service in violation of any such restrictions, laws or regulations. By accessing or using the service, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
20. Modifications to these Terms
21. Modifications to the services
xCures is still evolving. For this reason, we reserve the right to discontinue, modify, or change the services, the information we collect, make available, use or share through the services, or the systems and services we use to deliver the services, at any time and from time to time, with or without notice to you. In such circumstances, xCures will have no liability or obligation to you.
22. No Waiver
xCures’ failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision
23. Governing Law
These Terms are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in California.
24. Entire Agreement; Interpretation
Titles and headings of sections in these Terms are for convenience only and will not affect the construction of any provision hereof. In the event of any conflict or inconsistency among the foregoing documents, precedence will be given to the mutually executed agreements specific to their subject matter, followed by these Terms.
If any provision of these Terms is determined to be invalid under any applicable statute or rule of law, such provision shall be deemed omitted, and the balance of these Terms shall remain enforceable.
You will not assign, delegate, or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. We may assign, delegate, or otherwise transfer these Terms, in whole or in part, without your consent. Subject to the foregoing, these Terms will be binding on each party and each party’s successors and assigns.
27. Dispute Resolution
A. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and xCures, whether arising out of or relating to the terms (including any alleged breach thereof), the services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into the terms, you and xCures are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
B. Prohibition of Class and Representative Actions and Non-Individualized Relief
You agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. unless both you and xCures agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s), except that you may pursue a claim for and the arbitrator may award public injunctive relief under applicable law to the extent required for the enforceability of this provision.
C. Pre-Arbitration Dispute Resolution
You agree that in the event of any dispute between you and xCures, you will first contact the xCures support team and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any legal or administrative proceeding. xCures is always interested in resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to the user’s satisfaction by emailing xCures support. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“notice”). Please contact firstname.lastname@example.org for xCures’s mailing address (“notice address”). The notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If xCures and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or xCures may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by xCures or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or xCures is entitled.
D. Arbitration Procedures
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “claim”) relating in any way to your use of xCures’ services and/or products, including the services, will be resolved by arbitration. You and xCures agree that any claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to the terms, you and xCures are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and xCures will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. An arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
E. Costs of Arbitration
Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $75,000, xCures will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
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.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the section under the heading “Prohibition of Class and Representative Actions and Non-Individualized Relief”, above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions under the heading “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these terms will continue to apply.
You have the right to opt-out and not be bound by the arbitration provisions set forth in these terms by sending written notice of your decision to opt-out to the xCures Privacy Office at the Notice Address. The notice must be received by the xCures Privacy Office, email@example.com, within thirty (30) days of your registering to use the services or agreeing to these terms, otherwise you shall be bound to arbitrate disputes in accordance with these terms. If you opt-out of these arbitration provisions, xCures also will not be bound by them.
I. Future Changes to Arbitration Agreement
Notwithstanding any provision in these terms to the contrary, xCures agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the services, you may reject any such change by sending written notice to that effect in accordance with the procedures described under the heading “Opt Out” above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these terms (or accepted any subsequent changes to these terms).
28. Prior Versions; Summary of Changes
We updated the Terms of Service to coincide with the launch of new services, including xACCESS and xINFORM. The version of the terms of service it replaces can be found at https://xcures.com/privacy-policy-v2020/