Terms and Conditions
IF THIS IS A MEDICAL EMERGENCY OR CRISIS SITUATION, DIAL 911 IMMEDIATELY FOR ASSISTANCE
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS USE AGREEMENT BEFORE CLICKING THAT YOU AGREE. CLICKING “I AGREE” INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS USE AGREEMENT, PROMPTLY CLOSE THIS PAGE AND DO NOT PROCEED WITH USE OF OR SUBSCRIPTION TO THE MeMD™ SERVICE. NOTWITHSTANDING THE FOREGOING, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS USE AGREEMENT WHEN YOU DO ANY OF THE FOLLOWING: (1) ACCEPT THE TERMS AND CONDITIONS OF THE USE AGREEMENT THROUGH ANY PRINTED, ORAL, OR ELECTRONIC STATEMENT, INCLUDING ON THE WEB BY ELECTRONICALLY MARKING THAT YOU HAVE REVIEWED AND ACCEPTED; (2) ATTEMPT TO OR IN ANY WAY USE OR SUBSCRIBE TO THE MeMD™ SERVICE; (3) PAY FOR THE MeMD™ SERVICE OR A SUBSCRIPTION TO THE MeMD™ SERVICE (WHETHER YOU PAY DIRECTLY OR SOMEONE ELSE PAYS ON YOUR BEHALF); OR (4) OPEN ANY PACKAGE OR START ANY PROGRAM THAT SAYS YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS USE AGREEMENT BY DOING SO. IF YOU DON’T WANT TO ACCEPT THE TERMS AND CONDITIONS OF THIS USE AGREEMENT, DON’T DO ANY OF THESE THINGS.
You acknowledge and understand that (1) you are using or subscribing to the MeMD™ Service to facilitate the delivery of health care services from providers who have agreed to provide services through the MeMD™ Service (the “Providers”), and that such services are provided at the sole discretion and medical judgment of the Providers; (2) accessing the MeMD™ Service from a state other than the Service Line you have requested or subscribed to is prohibited and you confirm that you are physically located in the state in which you are requesting the MeMD™ Service; (3) the MeMD™ Service may not be reimbursable by Medicare, Medicaid, Tricare, or any other government health care program and you agree not to use the MeMD™ Service for any services that are or might be reimbursable by such programs; (4) the MeMD™ Service may not be reimbursable by commercial insurers, managed care organizations, preferred provider organizations, or other payors and you will not seek reimbursement from any such payors for the cost of use of the MeMD™ Service where prohibited or otherwise not permitted by the payors; (5) you are at least 18 years of age or you are accompanied by a parent or guardian who can give informed consent on your behalf if you are under the age of 18 at the time of the consultation; and (6) if you are seeking services on behalf of a child, dependent, or other person for whose medical care you are responsible, your approval of the terms and conditions of this Use Agreement will bind such other person to these terms and conditions.
PRIVACY AND SECURITY; DISCLOSURE
MeMD’s™ Notice of Privacy Practices describing how medical information about you may be used and disclosed and how you can get access to this information may be viewed at http://www.memd.me/terms-privacy/. MeMD™ reserves the right to modify its Notice of Privacy Practices in its reasonable discretion from time to time. The Notice of Privacy Practices and any other MeMD™ privacy policies, including any amendments thereto, are incorporated into this Use Agreement in their entirety. Notwithstanding, you acknowledge and agree that information may be released without your consent in cases of medical emergency, abuse, neglect, court order, insurance billing claims requirements, adult and program evaluation, and where otherwise legally required.
Because the MeMD™ Service is a hosted, online application, MeMD™ occasionally may need to notify all users of the MeMD™ Service (whether or not they have opted out of email communications) of important announcements regarding the operation of the MeMD™ Service. If you become a free or paying customer of the MeMD™ Service, you agree that MeMD™ can disclose the fact that you are a free or paying customer of the MeMD™ Service.
If you have any questions about MeMD’s™ Notice of Privacy Practices, or would like to file a written complaint with MeMD™, please see the contact information for the MeMD™ HIPAA Compliance Officer by referring to the full version of the MeMD™ Notice of Privacy Practices at http://www.memd.me/terms-privacy/.
LICENSE GRANT AND RESTRICTIONS
MeMD™ hereby grants you a non-exclusive, non-transferable, worldwide right to use the MeMD™ Service, solely for your own purposes, subject to the terms and conditions of this Use Agreement. All rights not expressly granted to you are reserved by MeMD™ and its licensors.
You may not access the MeMD™ Service if you are a direct competitor of MeMD™, except with MeMD’s™ prior written consent. In addition, you may not access the MeMD™ Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the MeMD™ Service or its content in any way; (ii) modify or make derivative works based upon the MeMD™ Service or its content; (iii) publicly display visual output of the MeMD™ Service; (iv) transmit the MeMD™ Service over a network, by telephone, or electronically using any means; (v) create Internet “links” to the MeMD™ Service where prohibited or “frame” or “mirror” any of its content on any other server or wireless or Internet-based device; or (vi) reverse engineer or access the MeMD™ Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of the Service, or (c) copy any ideas, features, functions, or graphics of the MeMD™ Service.
You may use the MeMD™ Service only for your purposes and shall not: (i) send or transmit spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send, transmit, or post a message or any information under a false name; (iii) send, transmit, post, or store infringing, obscene, threatening, libelous, defamatory, fraudulent, false, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or the ownership or intellectual property rights of another person; (iv) send, transmit, or store material containing software viruses, worms, Trojan horses, or other harmful computer codes, files, scripts, agents, or programs; (v) interfere with or disrupt the integrity or performance of the MeMD™ Service or the data contained therein; or (vi) attempt to gain unauthorized access to the MeMD™ Service or its related systems or networks. You shall not use the MeMD™ Service in a way that could cause damage or adversely affect any other customers of MeMD™ or MeMD’s™ reputation, networks, property, or services.
You agree to keep confidential and use commercially reasonable efforts to prevent and protect the content of the MeMD™ Service from unauthorized disclosure or use.
If you are accessing the MeMD™ Service through MeMD’s™ mobile application (“app”), you acknowledge and understand that certain permissions may be required including, but not limited to, location services – allows the app to get your precise or approximate location using GPS or network location sources such as cell towers and Wi-Fi; take pictures – allows the app to take pictures with the camera; read phone status and identity – allows the app to access the phone features of the device to determine the phone number and device IDs, whether a call is active, and the remote number connected by a call; view network connections – allows the app to view information about network connections such as which networks exist and are connected; full network access – allows the app to create network sockets and use custom network protocols; read Google service configuration – allows the app to read Google service configuration data; and prevent device from sleeping – allows the app to prevent the device from going to sleep. Some of these permissions may consume additional battery power or incur data usage or charges.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with your use of the MeMD™ Service, including those related to data privacy, international communications, and the transmission of technical or personal data. You shall: (i) notify MeMD™ immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MeMD™ immediately and use reasonable efforts to stop immediately any copying or distribution of content of the MeMD™ Service that is known or suspected by you or your Users; and (iii) not impersonate another MeMD™ user or provide false identity information to gain access to or use of the MeMD™ Service.
INTELLECTUAL PROPERTY OWNERSHIP
MeMD™ alone (and its licensors, where applicable) shall own all right, title, and interest, including all related Intellectual Property Rights, in and to MeMD’s™ technology, its content, and the MeMD™ Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to the MeMD™ Service. This Use Agreement is not a sale and does not convey to you any rights of ownership in or related to MeMD’s™ technology, its content, the MeMD™ Service, or the Intellectual Property Rights owned by MeMD™. The MeMD™ name, the MeMD™ logo, and the product names associated with the MeMD™ Service are trademarks of MeMD™, and no right or license is granted to use them.
CHARGES AND PAYMENT OF FEES
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable; provided, however, you are not obligated to pay any fees or charges for which another party (e.g., your employer or health plan) has contractually agreed with MeMD™ to pay on your behalf. Payments may be made on a per-visit basis, annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. All payment obligations are noncancelable and all amounts paid are nonrefundable. All pricing terms are confidential, and you agree not to disclose them to any third party.
You should be aware that MeMD™ may use a third-party payment processor (the “Payment Processor”) to link MeMD™ to your credit card account. The processing of payments or credits, as applicable, in connection with your use of the MeMD™ Service will be subject to the terms, conditions, and privacy policies of the Payment Processor and your credit card issuer in addition to Use Agreement. MeMD™ is not responsible for any errors by the Payment Processor or your credit card issuer.
You understand and agree that for services provided on an appointment basis, if you fail to properly cancel a scheduled appointment at least 24 hours in advance of the appointment, you may be responsible for a missed appointment fee equal to the greater of MeMD’s™ then-current visit fee rate for the service type or the fees your insurer or other payor would have otherwise paid for the scheduled services had they taken place.
BILLING AND RENEWAL
MeMD™ charges and collects in advance for use of the MeMD™ Service. MeMD™ will automatically renew and bill your credit card or issue an invoice to you for your current subscription amount where applicable or as otherwise mutually agreed upon; provided, however, you are not obligated to pay any fees or charges for which another party (e.g., your employer or health plan) has contractually agreed with MeMD™ to pay on your behalf. Fees for other services will be charged on an as-quoted basis. MeMD’s™ fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on MeMD’s™ income.
You agree to provide MeMD™ with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and telephone number. You agree to update this information immediately upon any change to it. If the contact information you have provided is false or fraudulent, MeMD™ reserves the right to terminate your access to the MeMD™ Service in addition to any other legal remedies. Invoices will be billed in United States Dollars (USD) unless requested by you in advance of invoicing.
If you believe your bill is incorrect, you must immediately contact us in writing regarding the amount in question to be eligible to receive an adjustment or credit. You irrevocably waive your right to challenge the accuracy of any bill, or otherwise receive an adjustment or credit to any bill, if you fail to notify MeMD™ in writing within fifteen (15) calendar days after your receipt of the bill, that you believe the bill is inaccurate (setting forth an explanation of why).
NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to MeMD™ herein, MeMD™ reserves the right to suspend or terminate this Use Agreement and your access to the MeMD™ Service if your account becomes delinquent (falls into arrears) where any invoice is unpaid after the invoice due date whether it is the responsibility of you or a third party to pay the invoice. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for your subscription during any period of suspension. If you or MeMD™ initiates termination of this Use Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that MeMD™ may bill you for such unpaid fees or charges, unless another party (e.g., your employer or health plan) has contractually agreed with MeMD™ to pay on your behalf. MeMD™ reserves the right to impose a reconnection fee in the event your account is suspended and thereafter you request access to the MeMD™ Service.
TERMINATION FOR CAUSE
Any breach of your payment obligations or the payment obligations of another party (e.g., your employer or health plan) who has contractually agreed with MeMD™ to pay on your behalf, or unauthorized use of the MeMD™ Service, will be deemed a material breach of this Use Agreement. MeMD™, in its sole discretion, may immediately terminate your password, account, or use of the MeMD™ Service if you breach or otherwise fail to comply with this Use Agreement. In addition, MeMD™ may terminate a free account at any time in its sole discretion.
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Use Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the MeMD™ Service and that your billing information is correct.
You agree to indemnify, defend, and hold MeMD™ (including the MeMD™ Service), its subsidiaries, affiliates, parent companies, employees, subcontractors, agents, vendors, suppliers, and licensors harmless from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, suits, fees (including attorneys’ fees and expert fees), and costs of any kind whatsoever arising directly and indirectly out of or in connection with (1) your use of and subscription to the MeMD™ Service and any information (including the content and subject matter) you submit, post, transmit, or make available via the MeMD™ Service or to MeMD™ or the Providers; (2) your violation of this Use Agreement or any policy set forth in this Use Agreement; and (3) your violation of any applicable laws and regulations or rights of any third party.
DISCLAIMER OF WARRANTIES AND ASSUMPTION OF RISK – FUNCTIONALITY
Disclaimer of Warranties – Functionality of MeMD™ Service
(A) MeMD™ AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE MeMD™ SERVICE OR ITS CONTENT.
(B) MeMD™ AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT:
(1) THE USE OF OR SUBCRIPTION TO THE MeMD™ SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA;
(2) THE MeMD™ SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;
(3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE;
(4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE MeMD™ SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;
(5) ERRORS OR DEFECTS WILL BE CORRECTED; OR
(6) THE MeMD™ SERVICE OR THE SERVER(S) THAT MAKE THE MeMD™ SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(C) MeMD™ DOES NOT AUTHORIZE ANY THIRD PARTY TO MAKE ANY OF THE FOREGOING REPRESENTATIONS OR WARRANTIES ON ITS BEHALF.
(D) THE MeMD™ SERVICE AND ALL OF ITS CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS.
(E) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MeMD™ AND ITS LICENSORS HEREBY DISCLAIM ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Assumption of Risk – Functionality of MeMD™ Service
THE USE OF THE MeMD™ SERVICE OR ANY PORTION OF THE MeMD™ SERVICE IS STRICTLY AT YOUR SOLE RISK. YOU HEREBY RELEASE MeMD™ AND ITS LICENSORS FROM ALL CLAIMS WHICH MAY RESULT FROM THE USE OF THE MeMD™ SERVICE OR ANY PORTION OF THE MeMD™ SERVICE, OR THE NEGLIGENCE OF MeMD™ OR ITS LICENSORS, BUT THIS PROVISION EXPRESSLY DOES NOT INCLUDE ANY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
YOU UNDERSTAND THAT BY AGREEING TO THIS CLAUSE, YOU ARE RELEASING CLAIMS AND GIVING UP SUBSTANTIAL RIGHTS, INCLUDING YOUR RIGHT TO SUE.
DISCLAIMERS – HEALTHCARE SERVICES
The MeMD™ Service does not provide health care services; the MeMD™ Service simply provides a system to facilitate communication with the Providers using MeMD’s™ owned or licensed health information database and software. MeMD™ verifies the state and national (NPI, DEA) licensing status for all MeMD™-contracted Providers; however, it is your obligation to verify the state and national (NPI, DEA) licensing status for all Providers who are not contracted by MeMD™. Such Providers include, but are not limited to, Providers whose services are offered to you as part of a subscription or bundled services package by your employer, health plan, physician, or on the MeMD™ website or hosted portal.
MeMD™ SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PROVIDER PROVIDING MEDICAL CARE OR ADVICE (INCLUDING BUT NOT LIMITED TO PRESCRIBING MEDICATIONS) THROUGH THE MeMD™ SERVICE.
MeMD™ FURTHER DISCLAIMS ALL LIABILITY (INCLUDING ANY LIABILITY FOR A REFUND) FOR THE FAILURE OF A NON-CONTRACTED PROVIDER TO RENDER CARE TO YOU OR OTHERWISE FULFILL THE TERMS OF SERVICE OF YOUR SUBSCRIPTION OR BUNDLED SERVICES PACKAGE. A NON-CONTRACTED PROVIDER IS A PROVIDER NOT DIRECTLY CREDENTIALED AND CONTRACTED BY MeMD™ BUT WHOSE SERVICES ARE OFFERED TO YOU AS PART OF A SUBSCRIPTION OR BUNDLED SERVICES PACKAGE BY YOUR EMPLOYER, HEALTH PLAN, PHYSICIAN, OR ON THE MeMD™ WEBSITE OR HOSTED PORTAL. MeMD™ IS NOT RESPONSIBLE FOR PROVIDING YOU ADDITIONAL SERVICES PURCHASED VIA A SUBSCRIPTION OR BUNDLED SERVICES PACKAGE.
The MeMD™ Service is not a replacement for your primary care physician or annual office check-ups, nor is it a replacement for other treating providers. Consultations through the MeMD™ Service treat the majority of common medical and behavioral health conditions, however a small number of cases require an in-person visit for complete care. With respect to psychotherapy and counseling, you understand that information discussed in any sessions is for therapeutic purposes only and is not intended for use in any legal proceedings involving any other individuals participating in any sessions. You agree not to subpoena any Provider to testify for or against individuals (including you) participating in the sessions or to provide records in court actions against other individuals participating in any sessions. You understand that anything any individual participating in any session tells a Provider individually, whether on the phone or otherwise, may at the Provider’s discretion be shared with any other individual participating in the sessions.
The MeMD™ Service is not an online pharmacy, nor is it a Medicare prescription drug plan. Providers using the MeMD™ Service do not, via the MeMD™ Service, prescribe elective medications, narcotic pain relievers, or drugs listed as controlled substances by the U.S. Drug Enforcement Agency or regulated under state law. Review the DEA Controlled Substances Schedule (http://www.deadiversion.usdoj.gov/schedules/index.html) if you are interested in a particular prescription and are uncertain if it is listed as a controlled substance. MeMD™ does not guarantee that a specific medication will be prescribed by a Provider if requested, particularly where prescribing of the medication is in violation of MeMD’s™ Treatment Policies or not medically appropriate, as determined by the Provider in the Provider’s sole discretion. The Providers generally do not prescribe more than a 90-day refill within a 6-month period. You agree that any prescription obtained from a Provider in connection with your use of the MeMD™ Service will only be for its intended use. Refunds for completed visits are not provided solely on the basis of Providers not prescribing a medication.
The MeMD™ Service does not meet the minimum essential coverage (MEC) requirements imposed by the Patient Protection and Affordable Care Act (PPACA) or any minimum creditable coverage (MCC) requirements imposed by any state laws. The MeMD™ Service is not a Qualified Health Plan under the PPACA.
The MeMD™ Service is not insurance and is not intended to replace health insurance; it is a telemedicine service available on a per-visit or membership basis. The offering of products and services by MeMD™ is not to be construed as the sale of insurance product(s) or otherwise engaging in the transaction of insurance. MeMD™ expressly reserves the right, in order to comply with state insurance laws, to (i) limit the number of visits offered in connection with any bundled services and subscription packages and/or (ii) charge a visit fee, both in an amount determined by MeMD™ in its sole discretion.
You authorize MeMD™ to use and publish any comments you choose to share about the MeMD™ Service, such as comments shared in the MeMD™ Patient Satisfaction Survey, unless specified otherwise. MeMD™ will only publish the comments with your first name and the state of requested service.
MeMD™ does not warrant or validate any information provided by a third party (including, but not limited to, your employer, health plan, or the Providers) even if the information is about the MeMD™ Service, whether through advertisements, promotions, communications, or other materials, and does not assume any responsibility or liability for the accuracy of such information.
MeMD™ has the right to refuse access to the MeMD™ Service to any person, agency, or organization, at any time, for any reason, or for no reason at all.
THE MeMD™ SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MeMD™ IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATION ON LIABILITY
(A) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL MeMD™ (INCLUDING THE MeMD™ SERVICE), ITS SUBSIDIARIES, AFFILIATES, PARENT COMPANIES, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS, SUPPLIERS, AND LICENSORS BE LIABLE:
(1) IN ANY WAY FOR YOUR USE OF OR SUBSCRIPTION TO THE MeMD™ SERVICE OR ANY OF ITS CONTENT, INCLUDING, BUT NOT LIMITED TO, ERRORS OR OMISSIONS IN ANY CONTENT, INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF OR SUBSCRIPTION TO THE MeMD™ SERVICE; OR
(2) FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER, ARISING FROM OR IN CONNECTION WITH THE MeMD™ SERVICE, WHETHER IN ANY ACTION IN WARRANTY, CONTRACT, TORT, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE, OR OTHERWISE RESULTING FROM YOUR USE OF THE MeMD™ SERVICE.
(B) YOU HEREBY RELEASE MeMD™ (INCLUDING THE MeMD™ SERVICE), ITS SUBSIDIARIES, AFFILIATES, PARENT COMPANIES, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS, SUPPLIERS, AND LICENSORS AND HOLD THEM HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF ANY AND EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, RESULTING FROM YOUR USE OF OR ACCESS OR SUBSCRIPTION TO THE MeMD™ SERVICE OR THE NEGLIGENCE OF MeMD™ (INCLUDING THE MeMD™ SERVICE), ITS SUBSIDIARIES, AFFILIATES, PARENT COMPANIES, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS, SUPPLIERS, AND LICENSORS. TO THE EXTENT ALLOWED BY LAW, ANY LIABILITY OF MeMD™ (INCLUDING THE MeMD™ SERVICE), ITS SUBSIDIARIES, AFFILIATES, PARENT COMPANIES, EMPLOYEES, SUBCONTRACTORS, AGENTS, VENDORS, SUPPLIERS, AND LICENSORS FOR ANY CLAIMS YOU MAY HAVE AGAINST THEM IS LIMITED TO THE PROPORTIONATE AMOUNT OF THE VISIT OR SUBSCRIPTION FEES ACTUALLY PAID BY YOU THAT ARE ATTRIBUTABLE TO THE APPLICABLE SERVICE, INCIDENT, OR AFFECTED PERIOD GIVING RISE TO SUCH CLAIM. THIS PROVISION EXPRESSLY DOES NOT INCLUDE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
YOU UNDERSTAND THAT BY AGREEING TO THIS CLAUSE, YOU ARE RELEASING CLAIMS AND GIVING UP SUBSTANTIAL RIGHTS, INCLUDING YOUR RIGHT TO SUE.
LOCAL LAWS AND EXPORT CONTROL
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the United States. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the MeMD™ Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
MeMD™ and its licensors make no representation that the MeMD™ Service is appropriate or available for use in other locations. If you use the MeMD™ Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the content of the MeMD™ Service contrary to United States law is prohibited. None of the content of the MeMD™ Service, nor any information acquired through the use of the MeMD™ Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Except as this Use Agreement specifically provides otherwise, you must provide MeMD™ notice by calling or writing MeMD™ at its registered address. MeMD™ may provide you notice through one or more of the following: correspondence through general notice on the MeMD™ Service, to your last known address, to any fax number or e-mail address you have provided MeMD™, by calling you on any phone number you have provided MeMD™, by voice message on any phone number you have provided MeMD™, or by text message to any phone number you have provided MeMD™ that accepts text messages.
CONTACTING YOU REGARDING BILLING AND COLLECTIONS
You expressly authorize, and specifically consent to allowing, MeMD™ and any of MeMD’s™ agents to contact you in connection with any and all matters relating to unpaid past due fees or charges you may owe MeMD™. You agree that, for attempts to collect unpaid past due fees or charges, MeMD™ and any of its agents may contact you at any mailing address, telephone number, cellular phone number, email address, or any other electronic address that you have provided, or may in the future provide, to MeMD™. You agree and acknowledge that any e-mail address or any other electronic address that you provide to MeMD™ is your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid fees or charges, you agree that in addition to individual persons attempting to communicate directly with you, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.
ASSIGNMENT; CHANGE IN CONTROL
This Use Agreement may not be assigned by you without the prior written approval of MeMD™ but may be assigned without your consent by MeMD™ to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS CAREFULLY; IT AFFECTS YOUR RIGHTS
In those rare instances where your concern is not resolved to your satisfaction through calls to our customer care, you and MeMD™ each agree to try to resolve those disputes in good faith after you provide written notice of the dispute as set forth below. If the dispute is not resolved, you and MeMD™ agree that the dispute will be resolved through individual binding arbitration or small claims court, instead of courts of general jurisdiction.
Mandatory Arbitration and Waiver of Class Action. Instead of suing in court, you and MeMD™ agree to arbitrate all Disputes (as defined below) on an individual, non-representative, basis. You agree that, by accepting the terms and conditions of this Use Agreement, you and MeMD™ are waiving the right to a trial by jury or to participate in a class action or representative action. This agreement to arbitrate is intended to be broadly interpreted.
In arbitration, there is no judge or jury. Disputes are instead decided by a neutral third-party arbitrator in a more informal process than in court. In arbitration, there is limited discovery and the arbitrator’s decision is subject to limited review by courts. However, just as a court would, the arbitrator must honor the terms and conditions of the Use Agreement and can award damages and relief, including any attorneys’ fees authorized by law.
“Disputes” shall include, but are not limited to, any claims or controversies against each other related in any way to or arising out of in any way the MeMD™ Service or this Use Agreement, including, but not limited to, billing services and practices, policies, contract practices (including enforceability), service claims, privacy, or advertising, even if the claim arises after use of or access or subscription to the MeMD™ Service has terminated. Disputes also include, but are not limited to, claims that: (a) you or an authorized or unauthorized user of the MeMD™ Service brings against MeMD™ (including the MeMD™ Service), its subsidiaries, affiliates, parent companies, employees, subcontractors, agents, vendors, suppliers, or licensors; (b) you bring against a third party, such as a Provider, that are based on, relate to, or arise out of in any way the use of or access or subscription to the MeMD™ Service or this Use Agreement; or (c) MeMD™ brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and MeMD™, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (ii) claims that arose before this Use Agreement or out of a prior Use Agreement with MeMD™; (iii) claims that are subject to on-going litigation where you are not a party or class member; and/or (iv) claims that arise after the termination of your use of or access or subscription to the MeMD™ Service or this Use Agreement.
DISPUTE NOTICE AND DISPUTE RESOLUTION PERIOD.
Before initiating an arbitration or a small claims matter, you and MeMD™ each agree to first provide to the other a written notice (“Notice of Dispute”), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute to MeMD™ should be sent to MeMD’s™ registered address and also to (if the registered address is different): MeMD, Inc., 7332 East Butherus Drive, Suite 104, Scottsdale, Arizona 85260, Attn: Officers. MeMD™ will provide a Notice of Dispute to you at your last known physical address or email address. MeMD™ will assign a representative to work with you and try to resolve your Dispute to your satisfaction. You and MeMD™ agree to make attempts to resolve the Dispute prior to commencing an arbitration or small claims action. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or MeMD™ may commence an arbitration proceeding or small claims action.
ARBITRATION TERMS, PROCESS, RULES, AND PROCEDURES.
(1) Unless you and MeMD™ agree otherwise, the arbitration will be conducted by a single, neutral arbitrator and will take place in Maricopa County, Arizona (or such other location to which MeMD™ agrees). The arbitration will be governed by either: (a) rules that we mutually agree upon; or (b) the JAMS Comprehensive Arbitration Rules &Amp; Procedures (the “JAMS Rules”), as modified by this agreement to arbitrate, including the rules about filing, administration, discovery, and arbitrator’s fees. The JAMS Rules are available on its website at jamsadr.com. Notwithstanding any JAMS Rule to the contrary or any other provision in the arbitration rules chosen, by agreement, to govern the arbitration, we each agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that only a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.
(2) The Federal Arbitration Act (“FAA”) applies to your use of or access or subscription to the MeMD™ Service and this Use Agreement and arbitration provision. We each agree that the FAA’s provisions – not state law – govern all questions of whether a Dispute is subject to arbitration. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply. However, nothing in this paragraph will require or allow you or MeMD™ to arbitrate on a class-wide, representative, or consolidated basis.
(3) 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. YOU AND MeMD™ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER IN ANY PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MeMD™ expressly agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If any portion of this provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(4) We each are responsible for our respective costs, including our respective attorneys, experts, and witnesses, unless this Use Agreement or applicable law otherwise permits the award of such to MeMD™. We each will pay equally for any filing or case management fees associated with the arbitration and professional fees for the arbitrator’s services.
(5) An arbitrator’s award will be a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator’s decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court with jurisdiction.
(6) As an alternative to arbitration, we may resolve Disputes in small claims court in Maricopa County, Arizona (or such other location to which MeMD™ agrees).
NO TRIAL BY JURY AND NO CLASS ACTION
IF FOR ANY REASON A CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF OR ACCESS OR SUBSCRIPTION TO THE MeMD™ SERVICE OR THIS USE AGREEMENT IN ANY WAY PROCEEDS IN COURT RATHER THAN IN ARBITRATION, REGARDLESS OF WHETHER THE CLAIM IS AN ACTION, COUNTERCLAIM, OR ANY OTHER COURT PROCEEDING, WE EACH AGREE THAT TO THE EXTENT ALLOWED BY LAW, THERE WILL NOT BE A JURY TRIAL OR CLASS ACTION AND WE EACH UNCONDITIONALLY (1) WAIVE ANY RIGHT TO TRIAL BY JURY AND (2) WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS, INCLUDING JOINING A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERTING A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY OTHER PROCEEDING.
OTHER IMPORTANT TERMS
Subject to federal and state law or unless this Use Agreement specifically provides otherwise, your use of and access or subscription to the MeMD™ Service and this Use Agreement is governed solely by the laws of the state of Arizona, without regard to conflicts of law principles. If either of us waives or doesn’t enforce a requirement under this Use Agreement in an instance, we don’t waive our right to later enforce that requirement. Except as this Use Agreement specifically provides otherwise, if any part of this Use Agreement is held invalid or unenforceable, the rest of this Use Agreement remains in full force and effect. This Use Agreement isn’t for the benefit of any third party except MeMD’s™ subsidiaries, affiliates, parent companies, employees, subcontractors, agents, vendors, suppliers, licensors, and predecessors and successors in interest. You can’t assign this Use Agreement or any of your rights or duties under it, unless MeMD™ agrees to the assignment. MeMD™ can assign this Use Agreement without notice. You cannot in any manner resell the MeMD™ Service to another party. This Use Agreement and the documents it incorporates make up the entire agreement between us and replaces all prior written or spoken agreements – you can’t rely on any contradictory documents or statements by sales or service representatives or the Providers. The rights, obligations, and commitments in the Use Agreement that, by their nature, would logically continue beyond the termination of your use of or access or subscription to the MeMD™ Service (for example, those relating to billing, payment, dispute resolution, no class action, no jury trial) survive termination of your use of and access and subscription to the MeMD™ Service and this Use Agreement.
I have read this Use Agreement and I understand it. I agree to comply with it, on behalf of myself and on behalf of any other person on whose behalf I am or may in the future be seeking medical care. I understand and agree that if I fail to comply with the terms of the Use Agreement, I may be prohibited from using the MeMD™ Service, and I will hold MeMD™ harmless from any liability arising from my failure to comply. I hereby certify that I am at least eighteen years of age and possess the legal right and ability to enter into this Use Agreement under the name in which I have registered to use the MeMD™ Service. I further certify that I am physically present in the state that I have designated at the time that I am accessing the MeMD™ Service. I understand and acknowledge that my ability to access the MeMD™ Service is conditional upon the above-mentioned criteria of my certification of age, legal authority, and physical presence at the time that I access the MeMD™ Service, and that the Providers are relying upon this certification in order to interact with and facilitate health care services to me.
EFFECTIVE AND REVISED 05/03/16