Purchase & Service Agreement
This Purchase & Service Agreement (“Agreement”) is entered into by and between TeleHealth Innovations, LLC (“Seller”) and the purchasing party (“Customer”) as of the date that Customer clicks “Accept” (the “Effective Date”). Each of Seller and Customer may be referred to individually as a "Party" and collectively as the "Parties." The Parties agree as follows:
1.1 “Affiliate” means a company controlled by, under common control with, or controlling Customer. For this purpose, “control” of an entity means control, directly or through one or more intermediate entities, of more than 50% of the outstanding voting equity of the entity.
1.2 "Confidential Information" means non-public information of the Disclosing Party, including, but not limited to, the software, technical, marketing, business, operations, trade secrets, financial, personnel, planning, and other proprietary information that is either marked confidential, or which the Receiving Party should reasonably know to be confidential. Confidential Information includes the Agreement and a Party's trade secrets. Confidential Information does not include: (a) information lawfully obtained or created by the Receiving Party independently of the Disclosing Party's Confidential Information without breach of any obligation of confidence, (b) information that enters the public domain without breach of any obligation of confidence. For purposes of this Agreement, Confidential Information does not include Protected Health Information.
1.3 “Customer Data” means electronic data and information submitted by or for Customer to the Services.
1.4 “Disclosing Party” means a Party disclosing Confidential Information.
1.5 “Documentation” means user manuals and other instructional documentation, in any form or medium, provided by Seller for use with the System, as amended by Seller from time to time.
1.6 "HIPAA" or "HIPAA Regulations" shall mean the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act, and the rules and regulations promulgated thereunder and any amendments thereto.
1.7 “Receiving Party” means a Party receiving Confidential Information.
1.8 “Seller Hardware” means hardware manufactured by Seller.
1.9 “Services” means the content, features and functionality of TrueTeleHealth software application made available to Customer as a service under this Agreement.
1.10 “System” means, collectively, the Services, Seller Hardware and any Third-Party Products provided hereunder.
1.11 “Third-Party Products” means any software or hardware obtained from third-party manufacturers or distributors and provided by Seller hereunder including open source software listed on Seller’s website at www.TrueTelehealth.com.
1.12 “User” means an individual who is authorized by Customer to use the Service, for whom Customer has purchased a subscription. Users may include, for example, employees, consultants, contractors and agents of Customer.
1.13 “Warranty Period” means the ninety (90) day warranty period for the Seller Hardware, beginning on the date of delivery of the Seller Hardware. If Customer purchases an additional three (3) year warranty, then the Warranty Period is extended beyond the initial 90-day period for an additional thirty-six months.
1.14 “White Glove Setup” means delivery of the System to Customer’s facility, unpacking, removal/disposal of packing materials and transporting your order up or down a maximum of one flight of stairs.
2.1 Seller hereby grants Customer a limited, non-sublicensable, non-transferable, non-exclusive, right, to use the Services, solely in accordance with this Agreement and the Documentation.
2.2 Customer shall (a) be responsible for its Users’ compliance with this Agreement, including the Terms & Conditions located at www.TrueTeleHealth.com/Legal, (b) be responsible for the quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Seller promptly of any such unauthorized access or use, (d) ensure that it has implemented and maintains a HIPAA-compliant email address to receive email communications from Seller, and (e) use Services only in accordance with this Agreement, Documentation, and applicable laws and government regulations. The Terms & Conditions are subject to change in Seller’s sole discretion. Any update will be posted on the System.
3. Fees and Payment Terms.
3.1 Fees. Customer shall pay all fees specified on the checkout page when purchasing the Hardware and Services. Fees are based on Hardware and Services subscriptions purchased and not actual usage. Except as set forth in this Agreement, Payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Payment Terms.
(a) Fees for the Services shall be paid monthly in advance. Fees for Hardware shall be paid upon execution of this Agreement. Customer is responsible for providing complete and accurate billing and contact information Seller and notifying Seller of any changes to such information. You represent that you are authorized to use that payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your monthly bill (including any applicable taxes and other charges) (each, a “Transaction”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Transaction may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Transaction. If you want to change or update your payment method information, you can do so at any time by logging into your Account. If a payment is not successfully settled and you do not edit your payment method information, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated.
(b) Customer’s payment obligations hereunder may (if authorized by Customer) be made by direct withdrawal from Customer’s bank account. In the event Customer has given such authorization, such withdrawal is subject to the operating rules of the National Automated Clearing House Association (“NACHA”). Seller and Customer each agree to be bound by and comply with the NACHA rules applicable to it with respect to such withdrawals. Any authorization given by Customer shall remain in effect unless and until revoked in writing by an authorized representative of Customer and until Customer’s bank and Seller have each received such notice and have had reasonable time to act upon such notice.
3.3 Overdue Charges. If any invoiced amount is not received by Seller by the due date, then without limiting Seller’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
3.4 Suspension of Service. If any charge owing by Customer is 15 days or more overdue, Seller may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that, Seller has given Customer at least 10 days prior notice that its account is overdue.
3.5 Taxes. Seller’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Seller has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Seller shall invoice Customer and Customer shall pay that amount unless Customer provides Seller with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Seller is solely responsible for taxes assessable against it based on its income, property and employees.
3.6 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Seller regarding future functionality or features.
4.1 General Support. Customer can contact customer support for general support inquiries (such as general account questions), at no additional charge, by either (1) calling (833) 483-5633, (2) emailing firstname.lastname@example.org, or (3) by visiting the “Contact Us” page on the TrueTeleHealth website and sending a message after selecting the “General Support” tab. General support is available: 8:00 am – 4:00 pm CT Monday through Friday, excluding holidays.
4.2 Advanced Technical Support. For Advanced Technical Support, Customer can contact that department (1) by calling (877) 910-0004, (2) by visiting the Contact Us page on the TrueTeleHealth website and sending a message after selecting the “Technical Support” tab. Advanced Technical support is available: 8:00 – 4:00 pm CT Monday through Friday, excluding holidays.
5.1 All intellectual property rights in or to the System, the Documentation, the Third-Party Products, Seller’s Confidential Information and the Proposals, drawings, descriptions and written information provided by Seller (collectively, “IP Deliverables”) are and will remain the exclusive property of Seller or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the IP Deliverables are used or licensed. Customer will not take any action that jeopardizes Seller’s or its licensors’ proprietary rights, or attempt to acquire any right, in the IP Deliverables. All rights not expressly granted to Customer with respect to IP Deliverables are reserved by Seller and its third-party licensors.
5.2 Unless otherwise agreed on a case-by-case basis, Seller will own all rights, including intellectual property rights, in any copy, translation, modification, improvement, adaptation, derivative work or other derivation of the IP Deliverables. Customer will execute, or will at Seller’s request procure the execution of, any instrument that may be appropriate to assign these rights to Seller to perfect these rights in Seller’s name. Customer shall not alter or remove any trademarks applied to, embedded in or associated with, the IP Deliverables.
6. Delivery Services.
6.1 Upon placing an order, Seller will drop ship the System to the Customer’s facility. If Customer purchases White Glove Setup, Seller will install the System at the Customer’s facility on a date to be agreed upon by Seller and Customer (the “Scheduled Delivery Date”). Customer will provide all necessary access to its facility and personnel for the period of time required for such installation. Any installation time incurred by Seller as a result of the Customer’s delay or failure to comply with the foregoing will be charged to Customer at Seller’s then-current hourly rates.
6.2 Seller must be notified of any cancellation of the Scheduled Delivery Date at least two weeks prior to such date. If such cancellation notice is received by Seller less than two weeks, but more than one week prior to the Scheduled Delivery Date, Customer will pay to Seller 25% of the fees to be paid for the White Glove Setup. If such cancellation notice is received by Seller within one week prior to the Scheduled Delivery Date, Customer will pay to Seller 50% of the fees to be paid for the White Glove Setup. Such payments will not be credited against Seller’s charges for any rescheduled delivery and installation.
6.3 Customer and Seller acknowledge and agree that (a) the damages to be anticipated as a result of a cancellation of the Scheduled Delivery Date as described above are, at the time of execution of this Agreement, uncertain in amount or difficult to prove; (b) the amounts stated above represent Customer’s and Seller’s intention to liquidate such damages in advance; and (c) the amounts stated above are reasonable and not disproportionate to the presumable loss or injury to be suffered by Seller due to Seller’s inability to schedule another installation date if a cancellation notice is provided to it less than two weeks in advance. If such delay has caused a cancellation of the Scheduled Delivery Date, Seller will provide the next available dates to the Customer. Customer at this time will absorb any necessary changes required on the project timeline in order to accommodate the new Scheduled Delivery Date provided by Seller.
6.4 Title and risk of loss for each item of Seller Hardware provided by Seller under this Agreement will pass to Customer on delivery at Customer’s facility.
7. Protection of Customer Data. Seller shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards shall include, but shall not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Seller, except as otherwise permitted under this Agreement.
8. Data Rights. Customer hereby grants to Seller the right and license to use, transmit, process, and store all Customer Data for purposes of providing and delivering the Services. In addition, Customer expressly permits Seller to de-identify and aggregate Customer Data that is collected from the System in accordance with 45 CFR § 164.514 (“De-Identified Data”). De-Identified Data shall be owned exclusively by Seller. Seller may use the De-Identified Data solely for Seller’s internal purposes, including internal product development, clinical research and administrative purposes. In no event will Seller re-identify or contact (or attempt to re-identify or contact) any individual or representative of an individual, or cause or authorize any other party to re-identify or contact such person, unless such action is required by law, and in such event Seller will promptly notify Customer in writing.
9.1 Protecting Confidential Information. The Receiving Party will apply commercially reasonable safeguards to protect the Confidential Information against unlawful or otherwise unauthorized access, use, and disclosure. The Receiving Party further agrees: (i) to permit access to, use, and disclose the Confidential Information solely for the purpose(s) expressly set forth in this Agreement; (ii) not to record, copy, or reproduce any Confidential Information in any form, except to the extent necessary to exercise its rights or fulfill its obligations under this Agreement; (iii) to limit access to and disclosure of Confidential Information to those of its employees and agents who are necessary for the exercise of its rights or performance of its obligations under this Agreement and to refrain from disclosing or otherwise permitting any third person or entity access to any Confidential Information except with the Disclosing Party's prior written consent; (iv) to ensure that its employees or agents who receive or obtain Confidential Information are advised of the obligations the Receiving Party has undertaken with respect to such information and agree to comply with these obligations; and (v) to take any other steps reasonably necessary to safeguard Confidential Information against unlawful and otherwise unauthorized access, use and disclosure. The Receiving Party shall provide prompt notice to the Disclosing Party of any breach of the provisions of this Section. The restrictions on use, disclosure, and reproduction of Confidential Information: (i) will be perpetual as they apply to trade secrets; or (ii) will last for five (5) years following the termination of this Agreement for all other Confidential Information.
9.2 Injunctive Relief. The Parties agree that (i) the breach, or threatened breach, of any provision of this Section 9; or (ii) misuse of the other Party's intellectual property, is likely to cause irreparable harm to the other Party without an adequate remedy at law. Upon any such breach, violation, or infringement, or threat thereof, a Party will be entitled to seek injunctive relief to prevent the other Party from commencing or continuing any action constituting such breach, violation, or infringement, without having to post a bond or other security, and without having to prove the inadequacy of other available remedies. Nothing in this Section 9 will limit any other remedy available to either Party.
9.3 Legally Required Disclosures. The Receiving Party may disclose Confidential Information if required to do so under any applicable law; provided, however, that the Receiving Party provides the Disclosing Party with prompt notice of any request for such a disclosure, so that the Disclosing Party may object to the request and/or seek an appropriate protective order. If law prohibits such notice, the Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate.
9.4 Return or Destruction of Confidential Information. Following the expiration or termination of the Agreement, each Party will immediately return (upon written request) or destroy all of the other Party's tangible Confidential Information (including copies or compilations derived from such Confidential Information) and, as applicable, certify in writing to the destruction thereof to the Disclosing Party. Notwithstanding the foregoing, neither Party shall be obligated to search archived electronic back-up files for any such Confidential Information in order to purge such information from such archived files, provided, however, a Party which retains any such Confidential Information in its archived files shall remain obligated (i) to maintain the confidentiality thereof in accordance with the terms of this Agreement, and (ii) not to use the retained Confidential Information for any purpose whatsoever. If either Party ever restores such archived files to a usable format, that Party must then destroy the Confidential Information of the other Party.
10. Term and Termination.
10.1 Term. This Agreement shall begin as of the Effective Date and continue until either Party terminates the Agreement as set forth in this Section 10.
10.2 Termination. This Agreement may be terminated as follows: (a) by either Party, at any time, if there is a material breach by the other Party that is not cured within thirty (30) days after receipt of written notice thereof, or substantial steps to cure have not been taken within thirty (30) days if such breach cannot be cured within thirty (30) days; (b) by either Party, immediately upon written notice if: (i) the other Party's license to operate is revoked or the other Party ceases to engage in all business activities; or (ii) the other Party files a petition for bankruptcy or any other insolvency, rehabilitation, conservation or liquidation proceeding under state or federal law or any bankruptcy, insolvency or liquidation order is entered against the other Party; or (c) by Seller, in the event of nonpayment for thirty (30) days for undisputed amounts, upon thirty (30) days written notice to Customer, unless such nonpayment is cured within thirty (30) days of the written notice of nonpayment.
10.3 Effect of Termination or Expiration. Customer’s termination shall be effective at the conclusion of the then current monthly billing period. Upon any termination or expiration of this Agreement, and except as otherwise provided for herein or therein: (i) all licenses and rights granted hereunder shall terminate and Customer will immediately cease to use and cause all Users to cease to use the Services; (ii) within ten (10) days of expiration or earlier termination of this Agreement, as applicable, Customer shall pay to Seller all fees that are then outstanding; (iii) each Party shall immediately discontinue all use of the other Party's Confidential Information; and (iv) each Party shall return or destroy Confidential Information in accordance with Section 9.4. Termination of this Agreement will not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination.
10.4 Survival of Obligations. Notwithstanding the circumstances of termination or expiration of this Agreement, or any portion thereof, all provisions of this Agreement, which by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect until all obligations are satisfied.
11. HIPAA. The Parties agree to comply with HIPAA Regulations and shall be responsible for their own compliance with respect to any of the System and the access, use, and disclosure of Protected Health Information. The Parties hereby agree to the Business Associate Addendum, attached hereto as Exhibit A. To the extent of any conflict between the Business Associate Addendum and any other part of this Agreement, the Business Associate Addendum shall control.
12. Limited Warranty.
12.1 Warranty Duration. The warranties set forth in this Section 12 will apply to all Seller Hardware during the Warranty Period.
12.2 Seller Hardware. Seller warrants for the Warranty Period that Seller Hardware will perform free of defects that would prevent the System from operating in conformity in all material respects with its Documentation, so long as such Seller Hardware is operated with Seller Software and the Third-Party Products. The following conditions apply:
(a) If Customer receive damaged or malfunctioning items within three business days of delivery, then return shipping is at no additional cost to Customer. Beyond the three day period, Customer shall bear the shipping costs to return the malfunctioning item of Seller Hardware to Seller and Seller shall bear the costs for ground-shipping the repaired or replaced item of Seller Hardware to Customer.
(b) Customer may request on-site support services. If Seller agrees to provide on-site support services, such services will be provided on a time and material basis at Seller’s then current rates, plus travel costs.
(c) In special or unusual circumstances, Customer may request to borrow a hardware unit that can serve as a temporary replacement for the malfunctioning item of Warranted Hardware (“Loaner”). Seller may, at its discretion, provide a Loaner for Customer to use until the covered item is repaired or replaced. Seller and Customer shall agree in advance on the fee for the use of the Loaner.
12.3 Third-Party Products. The warranties in Section 12 do not apply to any Third-Party Products, which may be made available by the manufacturers of such Third-Party Products.
12.4 No Other Warranties. SELLER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY BASED ON A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
13.1 Seller will defend and indemnify Customer from and against any and all losses, costs, damages, liabilities or expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred or arising from any claim by a third party alleging that Customer’s use of the System infringes a United States patent, copyright or trademark. This indemnity will not apply to claims arising from (a) use of the System outside the scope of the license granted to Customer; (b) use of the System in combination with the products of third parties (other than those approved in writing by Seller or set forth in the Documentation); (c) modification of the System not performed or provided by Seller; or (d) Seller’s compliance with Customer’s design specifications or instructions.
13.2 If a third-party infringement claim results in an injunction against Customer’s use of any component of the System, or if Seller reasonably anticipates such an injunction, Seller may, at its option: (1) replace or modify the portion of the allegedly infringing System with non-infringing components which perform substantially the same functions; or (2) obtain a right or license for Customer to continue use of the portion of the allegedly infringing System. THE PROVISIONS OF SECTIONS 13.1 AND 13.2 SET FORTH SELLER’S SOLE AND EXCLUSIVE OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
13.3 Each Party shall indemnify the other Party from third-party claims for injury, death or property damage based on the other Party’s alleged gross negligence or willful misconduct.
13.4 Customer will defend and indemnify Seller and its licensors, officers, agents and employees from and against any and all Losses incurred or arising from any claim or allegation by a third party relating to (a) Customer’s failure to comply with applicable laws, including intellectual property laws; (b) Customer’s failure to comply with the terms and conditions of any end-user license agreement for a Third-Party Product and (c) a patent, copyright or trademark infringement claim arising from Seller’s compliance with Customer’s specific designs or instructions, or Customer’s use of the System other than as licensed hereunder.
13.5 The indemnifying Party’s indemnification obligations under this Section 13 as to a third-party claim are conditioned upon the indemnified Party’s (a) giving prompt notice of any such claim to the indemnifying Party; (b) granting sole control of the investigation, defense and settlement of each such claim or action to the indemnifying Party (except that the indemnified Party’s prior written approval is required for any settlement that requires any payment by, imposes any material obligation on, or results in any ongoing material liability to, the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim.
14. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH OF THE PARTIES SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT SELLER’S LIABILITY TO CUSTOMER, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE, FOR ANY EVENT, ACT OR OMISSION SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID TO SELLER UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT EVENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PERMITTED HEREUNDER.
15. Representations and Warranties.
15.1 General. Each Party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its organization and is duly qualified to do business as a foreign entity in all jurisdictions where it is required to be so qualified; (b) it has the full legal right and entitlement (including any applicable intellectual property rights) to enter into, and to perform its obligations under, this Agreement; (c) entering into, this Agreement does not conflict with or breach any agreement to which it is a party and does not violate any applicable law of any court, governmental body or administrative or other agency having authority over it; (d) it is, and will remain throughout the term of this Agreement, substantially in compliance with applicable law; and (e) that, to the best of its knowledge, it and its officers, directors, employees, and subcontractors: (i) are not currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs as defined in 42 USC § 1320a-7b(f) (the "Federal Healthcare Programs") or any state healthcare programs; (ii) have not been convicted of a criminal offense related to the provision of healthcare items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs or any state healthcare programs; and (iii) are not under investigation or otherwise aware of any circumstances which may result in it being excluded from participation in the Federal Healthcare Programs or any state healthcare programs.
15.2 Seller Representations, Warranties, and Covenants. Seller represents, warrants, and covenants to Customer that Seller will perform the Services in a professional and workmanlike manner.
15.3 Customer Representations and Warranties. Customer represents and warrants to Seller that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data, so that, as received by Seller and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
15.4 DISCLAIMER OF WARRANTIES. Customer understands and agrees that Seller is not responsible for the delivery of healthcare services or medical advice or diagnosis services. Use of the System is not a substitute for professional judgment of healthcare providers in diagnosing or treating patients. You acknowledge that you are solely responsible for verifying the accuracy of patient information (including, without limitation, by obtaining all applicable patient's medical and medication history, and allergies), and for all medical decisions or actions with respect to the medical care, treatment and well being of your patients, including, without limitation, all your acts or omissions in treating the applicable patient. Any reliance by you upon the System shall not diminish that responsibility. Seller is not responsible for any actions of Customer or any users which may result in any liability or damages due to medical malpractice, failure to warn, negligence or any other basis, including but not limited to personal injury or death of any patient of client or a user. Customer will not represent to any third parties that Seller’s services provide any diagnosis, treatment, cure, or prevention of any disease or condition. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 15.1, ALL SERVICES AND SELLER MATERIALS ARE PROVIDED “AS IS.” SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SELLER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
16. Force Majeure. Seller’s obligations hereunder will be suspended so long as compliance is impeded or prevented by causes beyond Seller’s reasonable control, which may include acts of God, embargoes, acts of war (including terrorist attacks), labor disturbances and acts or regulations of governmental entities.
17. Audit. Customer shall maintain commercially reasonable books and records regarding its use of the System and Third-Party Products. Seller may up to twice per calendar year, upon reasonable notice to the Customer and during Customer’s regular business hours, enter Customer’s premises and conduct a commercially reasonable audit only of Customer’s records that pertain to the System and Third-Party Products to ascertain compliance with the terms and conditions of this Agreement. Customer shall reasonably cooperate with Seller with respect to any such audit and shall be responsible for any costs it incurs related to such audit. Within thirty (30) days of written notification, Customer agrees to pay Seller underpayment of any fees discovered during such audit.
18.1 Assignment. Customer may not assign any rights or delegate any obligations under this Agreement without the prior written consent of Seller. Any attempted assignment or delegation by Customer in violation of this Section 18.1 will be null and void.
18.2 Severability. If any term of this Agreement is held to be unenforceable, the other terms of this Agreement will be enforced to the fullest extent permitted by law.
18.3 No Third Party Beneficiary. Except as expressly set forth herein, nothing in this Agreement is intended to confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
18.4 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
18.5 Governing Law. This Agreement will be construed under the laws of the State of Illinois, excluding any provisions regarding conflicts of laws, and the Parties irrevocably agree that the state and federal courts in the county of Cook have exclusive jurisdiction for all actions to enforce this Agreement. The Uniform Computer Information Transactions Act, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, does not apply to this Agreement and is hereby disclaimed.
18.6 Waiver. No waiver or failure of a Party to assert any right under this Agreement on any one occasion will operate as a waiver of the same or any other right on any other occasion.
18.7 Notices. All notices under this Agreement will be delivered personally, sent by confirmed facsimile, sent by nationally recognized express courier or sent by certified or registered U.S. mail, return receipt requested, to the address shown at the beginning of this Agreement or such other address as may be specified by either Party to the other Party in compliance with this Section 18.7. Notices will be deemed effective on personal receipt, receipt of such electronic facsimile confirmation, two days after such delivery by courier and four days after such mailing by U.S. mail.
18.8 Interpretation. This Agreement, including all Exhibits, is the complete and final expression of the Parties’ agreement regarding its subject matter and supersedes all communications or agreements, written or oral, by the Parties regarding such subject matter. No amendment or supplement to this Agreement is effective unless it is in writing, it identifies itself as an amendment to this Agreement and is signed by both Parties’ authorized representatives. The word “include” (or any of its derivatives) is deemed to be followed in all contexts by the words “without limitation.” Headings are included for convenience and will be ignored in interpreting this Agreement. Without limiting the foregoing, this Agreement does not impose any obligations on Seller beyond those agreed to between Seller and Customer.
Business Associate Addendum
I. GENERAL PROVISIONS
Section 1.1. Status of Parties Under HIPAA. The parties acknowledge and agree that Customer (“Covered Entity”) is a Covered Entity (as defined by HIPAA) and TeleHealth Innovations, LLC (“Company”) is a Business Associate of Covered Entity when Company creates, receives, maintains, transmits, uses or discloses Protected Health Information on behalf of Covered Entity.
Section 1.2. Effect. To the extent that Company receives Protected Health Information from or on behalf of Covered Entity (“PHI”) to perform Business Associate activities, the terms and provisions of this Business Associate Addendum (this “Addendum”) shall supersede any other conflicting or inconsistent terms and provisions in this Agreement to the extent of such conflict or inconsistency.
Section 1.3. Defined Terms. Capitalized terms used in this Agreement (including this Addendum) without definition shall have the respective meanings assigned to such terms by the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, “HIPAA”).
Section 1.4. No Third Party Beneficiaries. The parties have not created and do not intend to create by this Agreement any third party rights, including, but not limited to, third party rights for Covered Entity’s patients.
Section 1.5. HIPAA Amendments. Any future amendments to HIPAA affecting Business Associate agreements are hereby incorporated by reference into this Agreement as if set forth in this Agreement in their entirety, effective on the later of the effective date of this Agreement or such subsequent date as may be specified by HIPAA.
Section 1.6. Regulatory References. A reference in this Addendum to a section in HIPAA means the section as it may be amended from time-to-time.
Section 1.7. Independent Contractor Status. The parties acknowledge and agree that Company is at all times acting as an independent contractor of Covered Entity and not as an agent or employee of Company under this Agreement.
II. OBLIGATIONS OF THE COMPANY
Section 2.1. Use and Disclosure of PHI. Company may use and disclose PHI as permitted or required under this Agreement (including this Addendum) or as Required by Law, but shall not otherwise use or disclose any PHI. Company shall not use or disclose PHI received from Covered Entity in any manner that would constitute a violation of HIPAA if so used or disclosed by Covered Entity (except as set forth in Sections 2.1(a), (b) and (c) of this Addendum). To the extent Company carries out any of Covered Entity’s obligations under the HIPAA privacy standards, Company shall comply with the requirements of the HIPAA privacy standards that apply to Covered Entity in the performance of such obligations. Without limiting the generality of the foregoing, Company is permitted to use or disclose PHI as set forth below:
(a) Company may use PHI internally for Company’s proper management and administration or to carry out its legal responsibilities;
(b) Company may disclose PHI to a third party for Company’s proper management and administration, provided that the disclosure is Required by Law or Company obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Covered Entity of any instances of which the third party is aware in which the confidentiality of the PHI has been breached;
(c) Company may use PHI to provide Data Aggregation services relating to the Health Care Operations of Covered Entity if required or permitted under this Agreement; and
(d) Company may use PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Company may disclose de-identified health information for any purpose permitted by law.
Section 2.2. Safeguards. Company shall use appropriate safeguards to prevent the use or disclosure of PHI other than as permitted or required by this Addendum. In addition, Company shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media (“EPHI”) that it creates, receives, maintains or transmits on behalf of Covered Entity. Company shall comply with the HIPAA Security Rule with respect to EPHI.
Section 2.3. Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Company shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
Section 2.4. Mitigation. Company shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to Company) of a use or disclosure of PHI by Company in violation of this Addendum.
Section 2.5. Trading Partner Agreement. Company shall not take any of the following actions: (a) change the definition, Data Condition, or use of a Data Element or Segment in a Standard, except where necessary to implement state or federal law, or to protect against fraud and abuse; (b) add any Data Elements or Segments to the maximum defined Data Set; (c) use any code or Data Elements that are either marked “not used” in the Standard’s Implementation Specification or are not in the Standard’s Implementation Specification(s); or (d) change the meaning or intent of the Standard’s Implementation Specification(s).
Section 2.6. Subcontractors. Company shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits PHI on behalf of Company. Company shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Company under this Addendum.
Section 2.7. Reporting Requirements.
(a) If Company becomes aware of a use or disclosure of PHI in violation of this Agreement by Company or a third party to which Company disclosed PHI, Company shall report the use or disclosure to Covered Entity without unreasonable delay.
(b) Company shall report any Security Incident involving EPHI of which it becomes aware in the following manner: (a) any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay, and (b) any attempted, unsuccessful Security Incident of which Company becomes aware will be reported to Covered Entity orally or in writing on a reasonable basis, as requested by Covered Entity. If the HIPAA security regulations are amended to remove the requirement to report unsuccessful attempts at unauthorized access, the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment.
(c) Company shall, following the discovery of a Breach of Unsecured PHI, notify Covered Entity of the Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than 60 days after discovery of the Breach.
Section 2.8. Access to PHI. Within 15 business days of a request by Covered Entity for access to PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Company, Company shall make available to Covered Entity such PHI for so long as Company maintains such information in the Designated Record Set. If Company receives a request for access to PHI directly from an Individual, Company shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to make decisions regarding whether to approve a request for access to PHI.
Section 2.9. Availability of PHI for Amendment. Within 15 business days of receipt of a request from Covered Entity for the amendment of an Individual’s PHI contained in any Designated Record Set of Covered Entity maintained by Company, Company shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI (for so long as Company maintains such information in the Designated Record Set) as required by 45 C.F.R. § 164.526. If Company receives a request for amendment to PHI directly from an Individual, Company shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to make decisions regarding whether to approve a request for an amendment to PHI.
Section 2.10. Accounting of Disclosures. Within 15 business days of notice by Covered Entity to Company that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Company shall make available to Covered Entity such information as is in Company’s possession and is required for Covered Entity to make the accounting required by 45 C.F.R. § 164.528. If Company receives a request for an accounting directly from an Individual, Company shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to provide an accounting of disclosures to the Individual.
Section 2.11. Availability of Books and Records. Company shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Company on behalf of, Covered Entity available to the Secretary for purposes of determining Covered Entity’s and Company’s compliance with HIPAA.
III. OBLIGATIONS OF THE COVERED ENTITY
Section 3.1. Permissible Requests. Covered Entity shall not request Company to use or disclose PHI in any manner that would not be permissible under HIPAA if done directly by Covered Entity (except as provided in Sections 2.1(a), (b) and (c) of this Addendum).
Section 3.2. Minimum Necessary PHI. When Covered Entity discloses PHI to Company, Covered Entity shall provide the minimum amount of PHI necessary for the accomplishment of Company’s purpose.
Section 3.3. Permissions; Restrictions. Covered Entity warrants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of PHI to Company. Covered Entity shall notify Company of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Company’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 C.F.R. § 164.522 that restricts Company’s use or disclosure of PHI under this Agreement unless such restriction is Required By Law or Company grants its written consent, which consent shall not be unreasonably withheld.
Section 3.4. Notice of Privacy Practices. Except as Required By Law, with Company’s consent or as set forth in this Agreement, Covered Entity shall not include any limitation in the Covered Entity’s notice of privacy practices that limits Company’s use or disclosure of PHI under this Agreement.
IV. TERMINATION OF THIS AGREEMENT
Section 4.1. Termination Upon Breach of this Addendum. Any other provision of this Agreement notwithstanding, either party (the “Non-Breaching Party”) may terminate this Agreement upon 30 days advance written notice to the other party (the “Breaching Party”) in the event that the Breaching Party materially breaches this Addendum and such breach is not cured to the reasonable satisfaction of the Non-Breaching Party within such 30-day period.
Section 4.2. Return or Destruction of PHI upon Termination. Upon expiration or earlier termination of this Agreement, Company shall either return or destroy all PHI received from Covered Entity or created or received by Company on behalf of Covered Entity and which Company still maintains in any form. Notwithstanding the foregoing, to the extent that Company reasonably determines that it is not feasible to return or destroy such PHI, the terms and provisions of this Addendum shall survive termination of this Agreement and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.
V. LIMITATION OF LIABILITY
Section 5.1. Limitation of Liability. In no event shall Company’s and its present and former affiliates’, directors’, officers’, employees’, and agents’ aggregate liability arising out of or related to this Agreement, whether in contract, tort, or under any other theory of liability, exceed the amounts actually paid by and due from Covered Entity under the Agreement during the one year period immediately preceding the date the cause of action arose.
Section 5.2. Exclusion of Consequential and Related Damages. In no event shall Company or its present and former affiliates, directors, officers, employees, or agents have any liability to Covered Entity or any third party for any lost profits, loss of data, loss of use, costs of procurement of substitute good or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort, or under any other theory of liability whether or not Company has been advised of the possibility of such damage. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Company’s and its present and former subsidiaries’, affiliates’, directors’, officers’, employees’, and agents’ liability shall be limited to the maximum extent permitted by law.
Section 5.3. Survival. This Section 5 shall survive the expiration or earlier termination of this Agreement.
Software Auto-Renewal Policy
Subscribing to the TrueTeleHealth software platform will result in a recurring monthly fee. This fee is based upon the number of providers you manage under your account. Before the end of each monthly subscription term, TrueTeleHealth will automatically renew your subscription on a monthly basis (until you cancel) by charging your payment method on file the renewal term subscription price in effect at the time of renewal (pricing subject to change). TrueTeleHealth will email you a receipt after processing each payment, and will obtain your consent prior to any pricing change.
If you received a promotion or discount for the initial billing term, you understand that you will be charged the full amount of the subscription after the promotion or trial period expires unless you cancel your subscription before the expiration of the promotion or trial period.
If you wish to add or remove Providers at a later time, you can do so by visiting your Facility Admin Account settings. Modifying the number of Providers will adjust your recurring monthly fee. You can also cancel your software subscription here, which would end the recurring monthly fee.
If you have any questions or concerns, please call us at (833) 483-5633 or email us at email@example.com.
Terms & Conditions
Telehealth Innovations LLC (“TeleHealth Innovations”, “we”, “us” or “our”) offers the online platform made available at www.TrueTeleHealth.com (“Platform”) to enable the clinic that you are affiliated with (“Clinic”) to help deliver its services to its patients via the TrueTeleHealth system (the “System”). Please read these Terms & Conditions (these “Terms”) carefully and in their entirety, as they set forth the legally binding terms and conditions that govern your use of the Platform. Note that Section 6 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
By clicking “I Accept” or by accessing or using the Platform, you agree to these Terms. If you do not agree with these Terms, including the mandatory arbitration provision and class action waiver in Section 6, you are not authorized to access or use the Platform for any purpose.
1. YOUR USE OF THE PLATFORM
(a) Your Responsibilities.
You hereby represent, warrant and covenant that:
• you are the individual that Clinic has requested provide Information through the Platform, and are not using or accessing the Platform on behalf of any other individual or entity;
• you will provide true and accurate Information; and
• you will use the Platform in accordance with all applicable laws.
(b) Restrictions on Your Use of the Platform.
You shall not:
• knowingly provide any information that is untruthful or inaccurate;
• impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
• sublicense, assign, distribute, transfer or otherwise make available the Platform or any features or functionality thereof, to any third party;
• remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Platform;
• upload, transmit or distribute to or through the Platform any code or data not intended to be transferred to or through the Platform (e.g., computer viruses or any software intended to damage or alter a computer system or data); or
• use software or automated agents or scripts to generate automated searches, requests or queries to, or strip, scrape, or mine data from, the Platform.
2. ACCOUNTS; REGISTRATION
The Platform is available only to users who register with us and are approved by the Clinic. To register for an account (“Account”), you must be of legal age to form a binding contract and must be approved by your Clinic. When you register, you will confirm that you are the health provider you claim you are, and you will enter the Clinic ID that your Clinic provided you. You are responsible for safeguarding and maintaining the confidentiality of your log in credentials, and you agree not to disclose them to any third party unless otherwise permitted in a written agreement with us. As between you and us, you will be solely responsible for any activities or actions taken under your Account, whether or not you have authorized such activities or actions. You must notify us immediately if your log in credentials have been lost or stolen or if you otherwise know or suspect that any unauthorized person is using your credentials or your Account. We strongly recommend that you do not access or use the Platform on public computers. You agree that the information that provided to us during registration or at any other time, will be provided in good faith and will be true, accurate, current, and complete.
If you provide your health care services through, or on behalf of the Clinic or another legal entity, you represent, warrant and covenant that (i) you have the authority to bind such entity to these Terms, and (ii) such entity will comply with these Terms. Each individual health care provider employed or engaged by such entity must separately register with us.
You, and not TeleHealth Innovations, are responsible for, and represent and warrant that you have obtained all necessary consents from your patients to any diagnosis or treatment, including without limitation, consent to use telehealth in the course of any services provided through the System, to the extent such consent is required by any applicable law or agreement.
By creating an Account, you also consent to receive electronic communications from TeleHealth Innovations (e.g., via email or by posting notices to the Platform). These communications may include operational notices about your Account and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
You further represent, warrant and covenant that, at the time of registration and on an ongoing basis, that you (i) satisfy all professional licensing requirements applicable to the professional services you are providing via the System, (ii) hold all valid and current licenses required to provide such services, (iii) are in good standing with each licensure board or other authority issuing such licenses or otherwise having regulatory authority over you, and (iv) have not received any notice of cancellation, probation, suspension, revocation or non-renewal of any licenses required to provide such services. If and for so long as you fail to satisfy the provisions of this paragraph, you will cease all use of the Platform. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties.
(d) Independent Contractor.
You acknowledge that you are an independent contractor, and that no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between you and TeleHealth Innovations.
To the extent you receive any confidential information of TeleHealth Innovations in connection with your use of the Platform, including but not limited to information concerning fees, marketing plans, financial results, patients, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by TeleHealth Innovations which is not generally known to the public, you agree to protect such information against any unauthorized use or disclosure and to use such information solely for the purposes for which it was disclosed to you. For purposes of clarification and not limitation, you are not permitted to disclose information about patients that you collect through the Platform to any third party without the express written consent of TeleHealth Innovations.
We do not decide the manner in which you or other providers are compensated for using the Platform. Any compensation decisions are the sole responsibility of your Clinic.
3. LICENSES AND INTELLECTUAL PROPERTY RIGHTS
(a) Our Content.
As between you and us, we own all right, title and interest in all intellectual property rights found on, provided by or embodied in the Platform, and all intellectual property developed, acquired or otherwise obtained by us and any derivative works thereof (“Our Content”). Our Content is protected by copyright, trademark, and other intellectual property and related laws. You may not distribute, modify, transmit, reuse, download, repost, copy or use Our Content, whether in whole or in part, for commercial purposes or for personal gain. We reserve all rights to Our Content not expressly granted in these Terms.
(b) Your Information.
As between you and us, you are the exclusive owner of all intellectual property rights in which certain information that you upload or submit to the Platform (“Information”); provided, however, that you give us (and those we work with, including third-party service providers) a worldwide, perpetual, irrevocable, transferrable, sublicensable license to use, host, store, reproduce, modify and create derivative works of your Information. You also agree that we can use your Information, on an aggregated and anonymized basis, for research, analytics or other similar purposes. We are not responsible for the accuracy, appropriateness or legality of your Information. You acknowledge that we have no obligation to store, monitor or update any of your Information. You bear sole responsibility for adequate security, protection and backup of your Information. We will have no liability to you for any unauthorized access or use of any of your Information or any corruption, deletion, destruction or loss of any of your Information.
(c) Platform Licenses.
Subject to, and conditioned upon, your compliance with these Terms and other guidelines and policies provided to you by the Clinic (or us), we hereby grant you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Platform, solely for your personal, non-commercial use.
THE PLATFORM IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ABSENCE OF DEFECTS, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS, THAT THE PLATFORM WILL BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE SECURE, ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
5. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND UNDERSTAND THAT TRANSMITTING YOUR INFORMATION USING THE INTERNET AND THE PLATFORM IS INHERENTLY RISKY, AS THE SECURITY OF SUCH TRANSMISSION CANNOT BE GUARANTEED AND A BREACH, COMPROMISE, OR OTHER INCIDENT MAY OCCUR NOTWITHSTANDING REASONABLE PRECAUTIONS. ACCORDINGLY, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE FOLLOWING IN CONNECTION WITH YOUR USE OF THE PLATFORM: (1) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (2) ANY AMOUNT IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN YOU AND US, AND WE BOTH HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR LIMITATION OF LIABILITY, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following Section carefully because it requires you to arbitrate certain disputes and claims with TeleHealth Innovations and limits the manner in which you can seek relief from us.
(a) Binding Arbitration.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 3(b) or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and TeleHealth Innovations agree (a) to waive your and TeleHealth Innovations’ respective rights to have any and all Disputes arising from or related to these Terms, or the Platform, resolved in a court, and (b) to waive your and TeleHealth Innovations’ respective rights to a jury trial. Instead, you and TeleHealth Innovations agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
(b) No Class Arbitrations, Class Actions or Representative Actions.
You and TeleHealth Innovations agree that any Dispute arising out of or related to these Terms or the Platform is personal to you and TeleHealth Innovations, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and TeleHealth Innovations agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and TeleHealth Innovations agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The arbitrator does not have the power to vary these class action waiver provisions.
(c) Federal Arbitration Act.
You and TeleHealth Innovations agree that these Terms affect interstate commerce and that the enforceability of this Section 6 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
(d) Notice; Informal Dispute Resolution.
You and TeleHealth Innovations agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to TeleHealth Innovations shall be sent by certified mail or courier to TeleHealth Innovations LLC, 3445 North Central Ave., Suite C, Chicago, IL 60634. Your notice must include (a) your name, postal address, telephone number and/or mobile phone number, the email address you use or used for your account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 2(b), and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and TeleHealth Innovations cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or TeleHealth Innovations may, as appropriate and in accordance with this Section 6, commence an arbitration proceeding or, to the extent specifically provided for in Section 6(a), file a claim in court.
Except for disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and TeleHealth Innovations agree that any dispute must be commenced or filed by you or TeleHealth Innovations within one (1) year of the date the dispute arose, otherwise the underlying claim is permanently barred (which means that you and TeleHealth Innovations will no longer have the right to assert such claim regarding the Dispute). You and TeleHealth Innovations agree that (a) any arbitration will occur (i) in the State of Illinois, County of Cook, (ii) in the county where you reside, or (iii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (c) that the seat of the arbitration shall be Chicago, Illinois and that state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois, County of Cook, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards.
The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and TeleHealth Innovations will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
(f) Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding any other provision of this Section 6, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section 6, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
(g) Rules of AAA.
The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause or provision of this Section 6 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 6 will remain valid and enforceable. Further, the waivers set forth in Section 6(b) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
(i) Opt-Out Right.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by writing to: TeleHealth Innovations LLC, 3445 North Central Ave., Suite C, Chicago, IL 60634. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 7.
7. GOVERNING LAW; VENUE.
These Terms and our relationship with you will be governed by the laws of the State of Illinois, excluding its choice of laws rules. You and TeleHealth Innovations each irrevocably agrees that any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis exclusively in the state or federal courts located in Cook County, Illinois. You and TeleHealth Innovations each irrevocably consents to the personal jurisdiction of these courts and waives any and all objections to the exercise of jurisdiction by these courts and to this venue. Notwithstanding the foregoing, however, you and TeleHealth Innovations agree that TeleHealth Innovations may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
8. GENERAL TERMS
We reserve the right to change these Terms at any time. We will provide you notice if we do, and we agree that changes cannot be retroactive. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and be enforceable. These Terms are the complete and exclusive statement of the terms and conditions governing your use of the Platform, and they supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. We may assign or transfer these Terms, in whole or in part, without restriction. You may not assign your rights or obligations under these Terms.
Last Updated: 4/1/20
COLLECTION OF INFORMATION
Information You Provide to Us
We collect information you provide directly to us. For example, we collect information when you create an account, make a purchase, participate in any features of the Platform, fill out a form or otherwise communicate with us.
We may also collect information about you and your employer, including but not limited to your name, your clinic name, your credentials and medical license numbers, address, email address, phone number and any other information you choose to provide.
The types of information we may collect from you include:
• Account Information: When you register for an account on the Platform, you will need to provide us with certain personal information to complete the registration, including information that can be used to contact or identify you, which may include your name, email address, username, password, and phone number.
• Transaction Information: We may collect and store information about the products and services you purchase, and shipping and billing information. We may also collect limited payment information from you, such as payment method and payment card information; however, we do not store full payment card numbers and our third party payment processor processes all transactions.
• Other Information You Choose to Provide: We may collect additional information that you provide, such as when you request technical or customer support or communicate with us.
Information We Collect When You Use the Platform
When you access or use our Platform, we automatically collect information about you, including:
• Usage Information: We collect information about your activity on the Platform.
• Log Information: We may collect log information about your use of the Platform, including the type of browser you use, access times, pages viewed, your IP address and the page you visited before navigating to our Platform.
• Information Collected by Cookies and Other Tracking Technologies: We and our service providers may use various technologies to collect information, including cookies and web beacons. Cookies are small data files stored on your hard drive or in device memory that help us improve our Platform and your experience, see which areas and features of our Platform are popular and count visits. Web beacons are electronic images that may be used in our Platform or emails and help deliver cookies, count visits and understand usage and campaign effectiveness. For more information about cookies, and how to disable them, please see “Your Choices” below.
Information We Collect From Other Sources
We may obtain information from other sources and use it as contemplated herein, including to provide the Platform to and otherwise communicate with you. For example, we may receive information from the clinic on behalf of whom you use the Platform.
USE OF INFORMATION
We may use information about you for various purposes, including to:
• Provide, maintain and improve our Platform;
• Provide and deliver the services you request, and send you related information,
• Send you technical notices, updates, security alerts and support and administrative messages;
• Respond to your comments, questions and requests and provide customer service;
• Monitor and analyze trends, usage and activities in connection with our Platform;
• Conduct research and measurement activities;
• Detect, investigate and prevent fraudulent transactions and other illegal activities and protect the rights and property of TeleHealth Innovations and others; and
• Carry out any other purpose for which the information was collected.
SHARING OF INFORMATION
• With vendors, consultants and other service providers, including, but not limited to, hosting providers, who need access to such information to carry out work on our behalf;
• In response to a request for information if we believe disclosure is in accordance with, or required by, any applicable law, regulation or legal process;
• If we believe your actions are inconsistent with our user agreements or policies, or to protect the rights, property and safety of TeleHealth Innovations or others;
• In connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business by another company;
• Between and among TeleHealth Innovations and its current and future parents, affiliates, subsidiaries and other companies under common control and ownership; and
• With your consent or at your direction.
We may also sell or share aggregated or de-identified information, which cannot reasonably be used to identify you.
From time to time we may partner with certain third-parties to collect, analyze, and use some of the information described above. For example, we may allow third parties to set cookies or use web beacons on the Platform or in email communications from TeleHealth Innovations. The information collected by third parties using these technologies may be used to engage in analysis and reporting. These third parties may set and access cookies on your computer or other device and may collect information about your online activities across different websites or services over time, including on websites and mobile applications that are not owned or operated by TeleHealth Innovations.
LINKS TO THIRD PARTY SITES
Our Platform may contain links to other web sites. Other web sites may also reference or link to our Platform. These other web sites are not controlled by TeleHealth Innovations. We encourage our users to be aware when they leave our Platform to read the privacy policies of each and every web site that collects personally identifiable information. We do not endorse, screen or approve, and are not responsible for the privacy practices or content of such other web sites or mobile applications. Visiting these other web sites is at your own risk.
TeleHealth Innovations takes reasonable measures to help protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction.
HOW WE RESPOND TO “DO NOT TRACK” SIGNALS
Some web browsers have “Do Not Track” or similar features that allow you to tell each website you visit that you do not want your activities on that website tracked. At present, the Platform does not respond to “Do Not Track” signals and consequently, the Platform will continue to collect information about you even if your browser’s “Do Not Track” feature is activated.
NOTE TO INTERNATIONAL USERS
You may update, correct or delete information about you at any time by logging into your account or by emailing us at contactus@TrueTeleHealth.com. If you wish to deactivate your account, you may do so by logging into your account and selecting that option under Account Settings, but note that we may retain certain information as required by law or for legitimate business purposes. We may also retain cached or archived copies of information about you for a certain period of time.
If you have any questions about TeleHealth Innovations’ privacy practices, please contact us at: contactus@TrueTeleHealth.com or (833) 483-5633.