ACCEPTANCE OF THE TERMS OF USE; NOT MEDICAL ADVICE; BINDING ARBITRATION
Welcome to Qoluna (“Qoluna,” “we,” “us” or “our”)!
These Terms of Service ("Terms") govern your access to and use of the mobile application, website, and services offered by us, Qoluna Health, Inc., a Delaware corporation (collectively, the "Services"). Please read these Terms carefully before using our Services. By scrolling down the text of these Terms in the window popped up to you upon your first use of the Services until the “Accept” button on said window is ungrayed and clicking on said “I agree” button or by otherwise accessing or using our Services, you agree to be bound by these Terms and our Privacy Policy, which is incorporated herein by reference, and affirm that you are at least 18 years of age. If you do not agree, you may not use the Services.
As an initial matter, you understand and agree that by providing the Services described in this document, we do not render any medical advice or diagnose, treat, or prevent any specific disease or condition, including any communicable disease or virus. You further understand that the insights and information Qoluna provides are intended to facilitate increased user awareness, education, and empowerment in user’s own health and wellness management. They are not intended to replace or substitute for professional medical advice, diagnosis, or treatment. If you have any concerns about your health, including whether you have been exposed to or have contracted any disease or virus, immediately contact your healthcare provider. Before you take any action that may affect your health or safety, or the health or safety of others, please consult with a medical professional.
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY. The Services do not cover medical emergencies or urgent situations. You should not disregard or delay seeking medical advice based on anything that we do or do not report to you. If you believe you have an emergency, call 9-1-1 immediately.
The insight in any report we generate and present to you in connection with the Services is based on and produced by cross referencing data from third-party wearable devices or applications you elect to connect to the Services and information you provide to us against a database, compiled using generative AI technology, of medical journals and research publications. Qoluna is not responsible for and cannot confirm the accuracy and relevance of the third-party wearable data that you connect to Qoluna, the information you provide to us, or the content of any medical journals or research publications that are referenced.
The report and/or any personalized informational health insights we provide (collectively, the “Report”) are merely a summary of your key health patterns over the relevant time period, including activity, sleep, vital signs, and quality of life trends, and provide objective observations of such patterns based solely on cross referencing such patterns and data against metrics provided in medical journals and research publications. Qoluna does not and cannot conduct any independent analysis of its own on your data and will not provide you with a clinical diagnosis or medical advice. The Report is intended and designed solely to provide you with general information and education, to help you better understand your overall wellbeing. It is not intended to be, and cannot substitute for, professional medical advice, diagnosis, or treatment, or to be used in the cure, mitigation, treatment, or prevention of a disease or condition or for aiding clinical decision-making. The report’s observations do not constitute medical advice, and you are strongly advised to consult a licensed healthcare provider to interpret and discuss the information provided in the report.
Please note that these Terms provide that all disputes between you and Qoluna that in any way relate to these Terms or your use of the Services will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms. Your rights will be determined by one or more ARBITRATORS and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution for the details regarding your agreement to arbitrate any disputes with Qoluna.
READ OUR PRIVACY POLICY
For information about how we handle the data you provide us, please see our Privacy Policy, which is hereby incorporated by reference. By accessing or using the Services, you consent to the collection, use, and disclosure of your information, including (i) personal information and aggregate data, and (ii) personal health information that you choose to share with us, according to the features of the Services, all as set forth in our Privacy Policy (to the extent applicable). You further consent to have your personal information collected, used, transferred to, and processed in the United States, or any other country in which Qoluna or its affiliates or service providers maintain facilities, according to the actions you take in using the Services. We recommend you read our Privacy Policy on a regular basis, for a description of such data collection and use practices, as these documents may change from time to time.
USE OF THE SERVICES
The Services are offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are at least 18 years old and of legal age to form a binding contract with us. If you do not meet this requirement, you must not access or use the Services. Additionally, you cannot access or use Qoluna if you are barred from receiving services under applicable law or have previously been suspended or removed from our Services. You may only connect to Qoluna using our mobile application via a supported third-party mobile device. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access Qoluna.
ACCOUNT REGISTRATION
Full use of our Services requires you to create an account. By doing so, you agree to provide accurate and complete information, keep your login credentials secure and notify us immediately of any unauthorized use of your account.
For your account, you agree to provide true, accurate, current and complete information about yourself. It is your responsibility to maintain and promptly update this account information to keep it true, accurate, current and complete.
You are responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for all activities that occur in connection with your password or account. You agree to immediately notify us of any unauthorized use of either your password or account or any other breach of security. Qoluna cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
You may, at your sole discretion, permit a third party to access and use your account. If you choose to do so, you remain fully responsible for all activities that occur under your account, whether performed by you or by the third party. We disclaim any and all liability arising from such third-party use, and you agree to indemnify and hold us harmless from any claims, damages, or losses resulting from such use.
We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you or any users to whom you have permitted access to your account have violated any provision of these Terms.
NECESSARY EQUIPMENT
Full use of our Services is dependent upon your use of a supported third-party mobile device and Internet access, the maintenance and security of which may influence the performance of our Services. You are responsible for the supported third-party mobile device you choose to use and for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. By using our Services, you also acknowledge and agree that Internet transmission is never completely private or secure. You understand that any message or information you send to us may be read or intercepted by others.
Our Services include personalized health and wellness insights generated from third party wearable devices unaffiliated with us, including but not limited to Oura Ring, Apple Watch, Fitbit, and Withings. As mentioned in Section 1, we are not responsible for and cannot verify the accuracy of any information generated by such unaffiliated third parties. You agree to use the Services only for lawful and personal purposes. For more information about how your data from these unaffiliated third-party devices may be used, please consult our Privacy Policy.
USER CONTENT
You may input data or connect devices to our Services. By doing so, you grant us a license to use this data solely for the purposes outlined herein and in our Privacy Policy. You retain ownership of your personal information and agree to fully indemnify us for any loss we incur in connection with unauthorized or illegal input of your data or connection of devices to our Services.
SERVICES AND HEALTH AND WELLNESS DISCLAIMER
The Services provide general wellness insights based on data inputs from unaffiliated external third-party sources and from you. The Services and any report generated are not medical advice and are not intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or other health conditions. Always consult a licensed healthcare provider for medical decisions. In addition to other disclosures, limitations and restrictions about our functionality with respect to vital signs, activity, sleep, and other physiologic or biometric monitoring set forth elsewhere in these Terms, you specifically acknowledge and agree that:
Notifications provided by us are fact-based, reporting on specific objective conditions (e.g., respiratory rate at rest, heart rate at rest, skin temperature, activity levels, sleep state, body position, and similar characteristics). We do not provide recommendations relating to disease risk level or diagnosis.
Notifications are generated based on identification of statistically meaningful trends in the data collected based solely on cross referencing metrics from a database, compiled using generative AI technology, of medical journals and research publications.
The information and data provided by us is for your own health and wellness management and is presented only to you, and any information recipients identified in our Privacy Policy. You are solely responsible for determining the best and appropriate course of action based on the information, notifications and reports provided. We encourage you to discuss the information provided by us with your healthcare provider;
We do not make a determination or recommendation of when you need immediate medical intervention to assure or ensure your safety.
Notifications and information provided by us are to be used solely for reference, information, and educational purposes; they are NOT intended to be solely, exclusively or primarily relied upon for diagnosing, treating, mitigating, or preventing a disease or other condition.
Qoluna uses AI and machine learning technologies which involve inherent limitations and risks including the potential for “hallucinations.”
If you rely on any of our Services, you do so at your own risk. Our mobile application provides wellness insights, not medical advice. We make no guarantees about the accuracy or reliability of the content. The data and insights are not meant to replace professional judgment or consultation with a healthcare provider. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through Qoluna, and the use of our Services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of the Services.
QOLUNA RIGHTS
Our content includes all information, data, software, photographs, graphics, videos, audios, text, images, typefaces, sounds and other information, content, or other materials that are posted, generated, provided, or otherwise made available through our Services as well as the selection and arrangement thereof (collectively, “Qoluna Content”). The Qoluna Content as well as Qoluna and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries and are owned by us, our licensors or other providers of such material. No right, title or interest in or to the Services or any such content is transferred to you, and we reserve all rights not expressly granted herein.
Except as expressly provided in these Terms, no part of Qoluna and no Qoluna Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, web site or other medium for publication or distribution or for any commercial enterprise, without our express prior written consent.
Our name, brands, logos, slogans and other trademarks are our trademarks. All other names, brands, logos, product and service names, and designs appearing on this Platform or Product are the trademarks of their respective owners. You may not use such trademarks without our prior written permission or the applicable respective owners’ prior written permissions.
You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from or in any way exploit any of the Qoluna Content, in whole or in part. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying our Services. Our logos and any other trademarks that may appear on the Services, and the overall look and feel of the Qoluna, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission.
WHAT YOU CAN DO WITH OUR SERVICES
Our Services are provided solely for your personal, non-commercial use. When you use Qoluna, we grant you a limited, non-exclusive, non-transferable, revocable license to:
(1) Access and use our mobile application and its content;
(2) Use the mobile application and related software we provide;
(3) Interact with the data and insights generated from third-party devices you connect to the Services.
This license includes any third-party software embedded in any of our Services.
You may not:
(1) Reproduce, distribute, or publicly display the content or software in any way unless explicitly authorized;
(2) Modify, reverse engineer, or create derivative works based on our software;
(3) Access non-public areas or circumvent security features; or
(4) Use unauthorized tools to interact with the Services.
You may not use the Services:
In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the use, disclosure, or exportation of data or software to and from the United States or other countries).
For the purpose of exploiting, harming or attempting to exploit or harm others in any way by exposing them to inappropriate content, including asking for personally identifiable information or otherwise.
To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter”, “spam” or any other similar solicitation.
To impersonate or attempt to impersonate us, our employees, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm us or other users of the Services or expose them to liability.
Additionally, you agree not to:
Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other user’s use of the Services.
Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material of the Services.
Use any manual process to monitor or copy any of the material of Services or for any other unauthorized purpose without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Services.
Introduce any viruses, Trojan horses, worms, logic bombs, keystroke logging, or other material which is malicious or technologically harmful.
Otherwise attempt to interfere with the proper working of the Services.
You are further prohibited from violating or attempting to violate the security of the Services, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Services or any portion thereof without authorization, in violation of these Terms or in violation of applicable law.
Violation of these rules may result in suspension or termination of your account. We reserve the right to investigate and take appropriate action in response to any misuse of the Services. This includes disabling access, removing content, or suspending accounts that violate these Terms.
LINKS; THIRD PARTY WEBSITES, APPLICATIONS, AND RESOURCES
Qoluna makes no representations whatsoever about any third-party website, application, or content that you may access through or with the Services. When you access a non-Qoluna site or application, please understand that it is independent from Qoluna, and that Qoluna has no control over the content on that website or application. In addition, a link to or integration with a non-Qoluna website or application does not mean that Qoluna endorses or accepts any responsibility for the content, or the use, of the linked site or application. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access or use any third-party application or the third-party sites linked to our Services, you do this entirely at your own risk.
DMCA/COPYRIGHT POLICY
Qoluna respects the intellectual property of others and we expect our users to do the same. If you believe your work has been copied and shared on our Services in a way that violates your copyright, please contact us at support@qoluna.com, with information pertaining to your contact info and a description of the copyrighted work, the location of the allegedly infringing content, a statement under penalty of perjury that the use is unauthorized.
FEEDBACK
We welcome your feedback. You agree that any ideas, suggestions, or improvements you submit may be used by us without restriction or obligation to compensate you.
ALERTS AND NOTIFICATIONS
By using our Services, you agree to receive relevant communications such as service announcements and health tips. You may manage preferences through your settings. Standard data and messaging rates may apply.
CHANGES TO THE SERVICES
We may change or discontinue, temporarily or permanently, any feature, component, or content of our Services at any time without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content. We may also deliver updates or enhancements automatically without prior notice to you.
TERMINATION
We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Services or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. You may also close your account at any time. Certain provisions of these Terms will survive termination.
DISCLAIMER OF WARRANTIES
You understand that we cannot and do not guarantee or warrant that authorized files or content available for downloading in connection with the Services or the internet will be free of viruses, malware or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUS OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR MOBILE APPLICATION OR PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH OUR MOBILE APPLICATION OR PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AT YOUR OWN RISK, AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY OF OUR PROVIDERS, PARTNERS, AFFILIATES, OR HEALTH CONSULTANTS MAKE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, CURRENCY, ACCURACY, AVAILABILITY OR OPERATION OF THE SERVICES, OR THE INFORMATION OR CONTENT THEREOF. YOU ACKNOWLEDGE AND AGREE THAT THE RELIABILITY AND PERFORMANCE OF THE SERVICES OR OTHER ITEMS OBTAINED THROUGH USE THEREOF IS LARGELY DEPENDENT ON YOUR OWN ACTIONS AND OMISSIONS. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENT OR WARRANT THAT THE SERVICES, THEIR CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR MOBILE APPLICATION OR PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE, SERVICES, OR SERVERS, THE CONTENT, OR COMMUNICATIONS SENT FROM OR ON BEHALF OF US ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIME BOMBS OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR MOBILE APPLICATION OR OUR PLATFORM WILL OTHERWISE MEET YOUR NEEDS, EXPECTATIONS, OR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO SERVICES, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR MOBILE APPLICATION OR PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, OUR MOBILE APPLICATION AND OUR PLATFORM, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNITY
You agree to defend, indemnify and hold harmless us, our affiliates, licensors and service providers, and our and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assignees, from and against any and all claims, liabilities, deficiencies, damages, actions, judgments, settlements, interest, awards, losses, fines, penalties, costs, expenses or fees or any kind (including reasonable attorneys’ fees and costs) arising from or relating to your violation of these Terms or the terms in our other policies and agreements that you agree to be bound by, your use or misuse of the Services, including, but not limited to, any use of the Services’ content and products other than as expressly authorized, your use of any information obtained from our mobile application or platform, any user content you submit, post to or transmit through our mobile application or platform or the Services, or, your violation of any third party’s rights, including, but not limited to, intellectual property rights, right of privacy, right of publicity, and confidentiality.
LIMITATION OF LIABILITY
IN NO EVENT WILL WE, OUR AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THEM, ANY CONTENT OF THE SERVICES OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR MOBILE APPLICATION OR OUR PLATFORM OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, LOSS OR CORRUPTION OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR COMPUTER FAILURE OR MALFUNCTION.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES:
ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE THROUGH OR FROM THE SERVICES;
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES, OUR MOBILE APPLICATION OR OUR PLATFORM; AND
THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH THE SERVICES.
THESE LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SERVICES. THE OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OUR CONTROL. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE SERVICES OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS SECTION SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED TO US IN CONNECTION WITH YOUR USE OF THE SERVICES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SERVICES IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US FOR USE OF THE SERVICES IN THE PAST 12 MONTHS. YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.
DISPUTE RESOLUTION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and Qoluna arising out of or relating to these Terms, or any other Qoluna products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: Except as otherwise required by applicable law, the Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Qoluna, you agree to try to resolve the Dispute informally by contacting support@qoluna.com We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within a reasonable time (not to exceed thirty (30) days) after submission, you or Qoluna may commence a formal proceeding pursuant to this Section.
We Both Agree to Arbitrate: You and Qoluna agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. You agree that the arbitration will be held in the City, County, and State of New York or any other location we agree to, and waive any objection to such venue.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate: Either you or Qoluna may assert claims, if they qualify, in small claims court in the City, County, and State of New York or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
NO CLASS ACTIONS: YOU MAY ONLY RESOLVE DISPUTES WITH QOLUNA ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. YOU AGREE NOT TO PARTICIPATE OR OTHERWISE BE INVOLVED IN AND EXPRESSLY WAIVE THE RIGHT TO FILE ANY CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, OR CONSOLIDATION WITH OTHER ARBITRATIONS AGAINST QOLUNA OR OTHERWISE SEEK RELIEF ON A CLASS BASIS. YOU AND QOLUNA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Qoluna agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts located in the City, County, and State of New York. Both you and Qoluna consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
Electronic Communications
When you use the Services, or send e-mails, messages, and other communications from your electronic device to us, you are communicating with us electronically. Thus, you consent to receiving communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Qoluna may contact you by telephone, mail, or email to verify your account information. Qoluna may request further information from you, and you agree to provide such further information, to ensure that you have not fraudulently created your account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Services until you provide the information to us as requested.
Geographic Restrictions
We are based in the United States. We process all data in the United States. We make no claims or representations that the Services, our mobile application and platform or any of their content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries or jurisdictions. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Certain companies affiliated with us may provide services and operate websites which may be linked to from our mobile application or platform and which are governed by their own terms of use and not these Terms and may be subject to laws of other local or international jurisdictions.
GENERAL TERMS
These Terms represent the entire and exclusive agreement between you and Qoluna regarding your use of the Services and replace any prior agreements, whether written or oral, related to your use of the Services.
We reserve the right to modify, update, or discontinue these Terms at any time. Changes will be posted within our mobile application or on our website. By continuing to use the Services after changes become effective, you agree to be bound by the revised Terms. We recommend that you regularly review these Terms. If you do not agree to any such change, you must stop using the Services.
If a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, the remaining provisions will remain in full force and effect to the maximum extent permitted by law.
You may not assign, delegate, or transfer your rights or obligations under these Terms without our prior written consent. Any attempt to do so without such consent is null and void. We may freely assign or transfer these Terms without restriction. These Terms will bind and benefit both parties and their successors and permitted assigns.
We may provide you with notices under these Terms via email or through in-app notifications. The date of delivery shall be considered the date the notice is transmitted.
Our failure to enforce any provision of these Terms will not be deemed a waiver of that provision or any other rights we may have.
No waiver, modification, or amendment of these Terms will be effective unless in writing and signed by an authorized representative of Qoluna. Except as expressly stated, the remedies provided in these Terms are cumulative and do not exclude any other remedies available by law or otherwise.