These Terms of Use (these “Terms”) are a binding, contract between Xsolis, Inc. and our affiliates and subsidiaries (collectively “Xsolis,” “us,” “our,” or “we”) and our website visitors and health care customers and our health care customers’ workforce, including agency and contract personnel, under our health care customer’s direct control (collectively “your” or “you”) under which you may use our website (www.xsolis.com) and our online services (collectively, the “Online Services”). This Agreement applies solely to your use of our Online Services, including all enhancements, versions, and modifications.
WE ENCOURAGE YOU TO PLEASE READ THESE TERMS CAREFULLY. THEY DESCRIBE THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE ONLINE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT ACCESS OR USE THE ONLINE SERVICES.
Conditions of Use
As a condition of your use of the Online Services, you represent and warrant that you are at least age 18 or the age of majority where you live and have the power and authority to agree to these Terms. Our Online Services is not intended for, nor is it allowed to be used, by or designed to attract individuals under the age of 18. If you are under the age of 18, do not access or use the Online Services. These Terms create a legal binding agreement between you and us and describe the rules of your use of the Online Services. By browsing, accessing, linking, streaming, viewing, using or downloading information from this site, you agree to these Terms and any additional terms and conditions that may apply to specific sections of the Online Services or to other services available through the Online Services. If you are using the Online Services on behalf of another person, you represent that you are authorized to accept these Terms on that person’s behalf. Additional specific terms or agreements may apply to certain products or services or specific areas or features of the Online Services, such as events or promotions. If such terms or agreements conflict with these terms, the specific terms or agreements will prevail only to the extent of the conflict. Nothing in these Terms constitutes a license to use our products or services, for which a separate signed agreement between you and us must be signed by both of us.
Modifications to Terms
Xsolis reserves the right, in its sole and absolute discretion, to modify all or any portion of these Terms at any time without incurring any liability or obligation whatsoever to you or any other person or entity.. If we modify these Terms, we will post the changes to these Terms and will indicate the date these Terms was last revised. You must discontinue using the Online Services if you disagree with the modifications. Any changes will become effective as of the date of posting. Your continued use of the Online Services after any such changes constitutes your acceptance of, and agreement to be legally bound by, these Terms, as revised. It is your sole responsibility to regularly check these Terms to determine if there have been any changes to these Terms and to review such changes. We urge you to review these Terms often so you are always fully informed.
Accounts
You may have the opportunity on our Online Services to create a password-protected user account to participate in certain features of the Online Services, which may require you to complete a registration process to obtain access. If you create an account, you are responsible for maintaining your profile and using the settings available to protect the confidentiality of your profile, including your username, password and all other personal information. You are responsible for all uses of your account, whether or not you have authorized them. When registering to use any such features and/or portions of the Online Services, you agree: (i) to provide, maintain and update true, accurate, current, and complete information about yourself in the registration process, and (ii) to update such information if it changes. If you do not provide or update such information, or if we have reasonable grounds to suspect that you have not provided or updated such information, we shall have the right, in our sole and absolute discretion, to disable your username and/or password and prevent you from using the Online Services, or any features or portions of the Online Services. You may not and shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You agree to be responsible for: (i) the accuracy of all information that you provide to us; (ii) maintaining the confidentiality and security of any passwords or other account identifiers that you choose or that are otherwise assigned to you; and (iii) all activities that occur under such password(s) or account(s). You agree to immediately notify us of unauthorized use of your username, password, other account information or any other breach of security that you suspect or become aware of involving or relating to the relevant aspects of the Online Services. You also agree to exit your user account at the end of each session. Our Online Services may offer you the opportunity to register or log in using social media or other third-party services. We do not control such services and are not responsible for them. We fully disclaim all liability associated with them.
Restrictions
You agree as a condition of using the Online Services, that you will not yourself, or cause any others to, do any of the following:
Intellectual Property
The Online Services and their entire contents, proprietary contents, features, and functionality (including, without limitation, all information, software, text, displays, images, photos, video, audio, music, songs, recordings, digital downloads, graphics, “look and feel,” trademarks, logos, and trade dress; the design, selection and arrangement of those elements; and any derivative works, modifications, updates, enhancements, upgrades, or improvements made thereto, including any insights gained through algorithmic or machine learning models or processes, and any other files displayed or made available) (“Content”) are owned by us, our licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. The mark Xsolis® and all logos incorporating the mark, and certain of the other names, marks, and logos on the Online Services (“Marks”) are trademarks and service marks owned or controlled by us. All goodwill generated from use of our Marks will inure to our exclusive benefit. You may not, nor may you allow others to, directly or indirectly sell, license, rent, reproduce, modify or attempt to modify, or create derivative works from the Content or Marks in any way or reproduce or publicly display, perform, transmit or distribute or otherwise use the Content for any public or commercial purpose unless otherwise expressly provided herein or with prior written permission by Xsolis. You may not systematically retrieve Content or other data or other Online Services content from to create or compile, directly or indirectly, a collection, compilation, database or directory without our prior written consent. Subject to these Terms, we grant you a non-exclusive, non-transferable, non-assignable limited right to access, use and view the Online Services solely for your own personal use.
You do not have the right to delete or alter the Mark or any other copyright, trademark or other proprietary rights notices from copies of materials from the Online Services. No right, title or interest in or to the Online Services or the Content on the Online Services is transferred to you, and all rights not expressly granted are reserved by us.
Third-Party Service Providers
You acknowledge that some or all of the Online Services may be provided by one or more third parties or service providers (individually and/or collectively “Service Provider”). We provide those products and services to you with permission of the Service Providers, and subject to our these Terms set forth herein. Without limiting these Terms, we expressly disclaim any warranty or other assurance to you regarding these third-party products and services. These Terms are between you and Xsolis, not Service Provider.
Changes to the Online Services
We may, for any or no reason and at our discretion, modify, disable, or discontinue operation of the Online Services or your access to the Online Services without notice and without liability to you or any other party. Reasons for termination may include provision of false or misleading registration information, interference with other users or the administration of the Online Services, or violation of these Terms or any of our other policies or agreements. Upon denial of access, you agree not to attempt to access the Online Services. Termination will not limit any of our other rights or remedies. We also may limit your use of the Online Services within our sole discretion. If your permission to use the Online Services is terminated by us for any reason, these Terms will nevertheless continue to apply and be binding upon you with respect to your prior use of the Online Services and anything relating to or arising from such use. If you are dissatisfied with the Online Services, your sole and exclusive remedy is to discontinue using the Online Services.
Privacy Policy and Security
We respect your privacy and will handle your personal information pursuant to our Privacy Policy. We encourage you to review our Privacy Policy carefully to understand how Xsolis collects, uses, and discloses information, including personally identifiable information. We may revise and update the Privacy Policy from time to time in our sole discretion. All changes are effective immediately when we post them and apply to our collection, use, and disclosure of information thereafter. You acknowledge and agree that the Privacy Policy is incorporated by reference into these Terms, and it is your responsibility to review the Privacy Policy when accessing or using the Online Services so that you are aware of any changes.
You acknowledge that transmission of information by the Internet is never completely secure. Except as otherwise stated in our Privacy Policy and obligated under applicable law(s), we do not guarantee the security of any information transmitted to or from the Online Services, including to or from any external sites linked to the Online Services, and submission of any information to the Online Services or to any external sites linked to the Online Services is your risk and responsibility.
Force Majeure
If you or we are prevented from performing or are unable to perform any obligation under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence, but in no event later than 60 days.
Medical Disclaimers; Not Professional Advice
YOUR USE OF THE ONLINE SERVICES, INCLUDING BUT NOT LIMITED TO CONTENT (AS DEFINED BELOW), SOFTWARE, AND FEATURES, IS NOT INTENDED TO REPLACE OR ACT AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. NO HEALTH CARE PROVIDER-PATIENT RELATIONSHIP IS CREATED IN THE CREATION OR DELIVERY OF THE ONLINE SERVICES. THIS APPLIES TO ALL OF THE ONLINE SERVICES AND CONTENT.
The Content made available on or through the Online Services is for informational and educational purposes only and should not replace the professional judgment of health care providers in diagnosing and treating patients. Xsolis does not recommend or endorse any specific tests, physicians, treatments, medications, products, or procedures, nor does it guarantee the accuracy, completeness, or timeliness of the Content. Your reliance upon any such information is solely at your own risk.
You acknowledge that any Content and Online Services are intended as general guides and are not tailored to individual patient-specific requirements.
Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT USE OF THE ONLINE SERVICES IS AT YOUR SOLE RISK, ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ONLINE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. THE ONLINE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE OR THE RESULTS OF THE ONLINE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WE ARE NOT LIABLE FOR ANY INTERRUPTIONS, ERRORS, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS IN THE USE OF THE ONLINE SERVICES. WE EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE ONLINE SERVICES AND THE INFORMATION PROVIDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, FREEDOM FROM DEFECTS, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. THIS INCLUDES LOSS OF DATA OR PROFIT ARISING OUT OF THE USE OR THE INABILITY TO USE THE CONTENT OF THE ONLINE SERVICES. WE DO NOT WARRANT THAT ANY CONTENT OR INFORMATION ACCESSED THROUGH THE ONLINE SERVICES E WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ONLINE SERVICES OR THE SERVERS THAT MAKE THE ONLINE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE ONLINE SERVICES MAY BE USED TO FACILITATE OTHER SERVICES SUCH AS THE PROVISION OF HEALTH CARE AND MEDICAL SERVICES, NONE OF WHICH ARE COVERED BY THESE TERMS. THESE TERMS APPLY ONLY TO THE ONLINE SERVICES, ANY OTHER SERVICES FACILITATED BY THE ONLINE SERVICES ARE NOT SUBJECT TO THESE TERMS. Xsolis MAKES NO REPRESENTATION OR WARRANTIES AS TO THE QUALITY, LAWFULNESS, OR MERCHANTABILITY OF SUCH OTHER SERVICES, WHICH MAY BE SUBJECT TO OTHER AGREEMENTS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL Xsolis OR ANY OF OUR SUPPLIERS, VENDORS, SERVICE PROVIDERS, THIRD PARTY SUPPLIERS, OR PARENTS, SUBSIDIARIES, AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, OR REPRESENTATIVES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO ANY USE OF THE ONLINE SERVICES OR THE INFORMATION CONTAINED ON THE ONLINE SERVICES, THE INABILITY TO USE THE ONLINE SERVICES, THE USE OF OR THE INABILITY TO USE THE ONLINE SERVICES, OR ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE ONLINE SERVICES, OR LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF A USER’S TRANSMISSIONS OR DATA OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS, AND THE ONLINE SERVICES WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.IN THOSE JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Waiver of California Civil Code Section 1542 and Similar Laws
BY USING THE ONLINE SERVICES, YOU WAIVE ANY RIGHTS YOU MAY HAVE WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR,” AND ANY SIMILAR LAW OF ANY OTHER JURISDICTION.
Relationship of Parties
You acknowledge that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these terms or any use of the Online Services. You agree not to hold yourself out as our representative, agent, or employee, and we shall not be liable for any representation, act or omission made by you.
Indemnification
You agree to defend, indemnify and hold harmless us, our affiliates, licensors and service providers, and our respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) (“Claim”) arising out of or relating to your violation of these Terms or your representations and warranties in these Terms, your use of the Online Services, including, without limitation, your User Contributions, any use of the Online Services’ Content, services and products other than as expressly authorized in these Terms or your use of any information obtained from the Online Services, or infringement by you, or other user of the Online Services using your computer, of any intellectual property or any other right of any person or entity. You will cooperate as fully as reasonably required in the defense of any Claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any Claim otherwise subject to indemnification by you, and you will not in any event settle any such matter without our written consent.
Confidentiality and Privacy for Health Care Providers
All personal information and health information (collectively, “Protected Information”) collected, maintained, and accessible through the Online Services is subject to the federal Health Insurance Portability and Accountability Act (HIPAA) and other state specific health and general privacy laws and regulations (collectively, “privacy laws”). Health care customers and their authorized workforce, including agency and contract personnel, under the health care customer’s direct control (collectively, “Health Care Customer”) who access the Online Services are subject to the privacy laws. Any and all unauthorized access, use, disclosure, transmission, storage, or destruction of Protected Information within the Online Services may result in Health Care Customer’s violation of the privacy laws, which may result in civil and/or criminal enforcement actions, investigations, and penalties.
If you are a Health Care Customer, you are advised of and agree to the following pursuant to your access and use of the Online Services:
Governing Law and Jurisdiction
These terms are governed by and construed in accordance with the laws of the State of Tennessee, United States of America, without giving effect to the principles of conflicts of laws of such state, and are binding on you in the United States and worldwide. Except as otherwise stated in these terms, we make no representation that our site is appropriate, legal or available for use in other locations. Accordingly, if you choose to use the Online Services, you agree to do so subject to the internal laws of the State of Tennessee. The state and federal courts of Davidson County, Tennessee, will be the exclusive forum and venue to resolve any disputes arising out of or relating to these Terms or the use of or visit to any part of the Online Services. You acknowledge that your breach or potential breach of any of these Terms or infringement or potential infringement of our intellectual property rights, including the Content and Marks, may cause us irreparable harm for which recovery of money damages would be inadequate. You agree that we will be entitled, in addition to any other remedies available to us, to seek any relief, equitable or otherwise, to prevent or restrain such breach or potential breach.
Termination
If you breach any provision of these Terms, you may no longer use the Online Services. We may, in our sole discretion, change, suspend, or terminate, temporarily or permanently, the Online Services or any part thereof or any features at any time, for any reason, without any notice or liability to you or any other entity. If your permission to use the Online Services is terminated by us for any reason, these Terms will nevertheless continue to apply and be binding upon you with respect to your prior use of the Online Services and anything relating to or arising from such use. If you are dissatisfied with the Online Services, your sole and exclusive remedy is to discontinue using the Online Services.
International Use and Export Controls
The Online ServicesisoperatedfromitslocationintheUnitedStatesofAmerica.Wedonotrepresent that the Online Services is appropriate or available for use in all jurisdictions, and not all of our productsorservicesdiscussedonthe Online Services are availableinalljurisdictionsorappropriate oravailableforuseoutsidetheUnitedStates.If you choose to access the Online Services from outside of the United States, you do so on your own initiative and at your own risk and you are solely responsible for complyingwithapplicablelocallaws,includingapplicablelawsregardingthetransmission of data exported from the United States or the country in which you reside.Certain software and services offered on or through the Online Services, including Content, may be subject to United States export controls and economic sanctions laws. You agree to comply with all applicable international and national laws that apply to the Online Services, Content, information, and the underlying technology, as well as end-user, end use, and destination restrictions issued by the United States, and other governments. By downloading or using the Online Services, you agree to the foregoing, and you represent, warrant, and covenant that you are not located in, under the control of, or a national or a resident of any country identified in any applicable legislation, regulation, deny order or prohibition list issued by any governmental or regulatory body, and that you will otherwise comply with all applicable export control laws.
Miscellaneous Terms
These Terms will inure to the benefit of our successors, assigns and licensees. If any provisions of these Terms are unlawful, void, or unenforceable for any reason, the other provisions will not be affected and will remain valid and enforceable to the maximum possible extent. These Terms will apply in addition to, and will not be superseded by, any other written agreement between you and us in relation to any of our site, products, or services, unless otherwise stated in a separate agreement between the parties. Our failure to insist on or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. Together with These terms and any other specific terms or agreements in connection with a particular feature of or through the Online Services constitute the entire agreement between you and us with respect to your use of the Online Services. Any cause of action you may have with respect to your use of the Online Services or that is the subject of these Terms must be commenced within one (1) year after the claim or cause of action arises. Any provisions of these Terms that by their nature should survive termination of these Terms will survive.
How to Contact Us
If you have any questions regarding these Terms, or to report violations of these Terms, please contact us at privacy@xsolis.com.