Effective Date: Oct 01, 2018
THE SERVICES ARE NOT FOR USE IN MEDICAL EMERGENCIES OR OTHER URGENT SITUATIONS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
Note that Section 19 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 Services, you agree to these Terms. If you do not agree with these Terms, including the mandatory arbitration provision and class action waiver in Section 19, you are not authorized to access or use the Services for any purpose.
ListenMD provides a technology platform via the Services. ListenMD provides a messaging service to facilitate the transcription and exchange of health information and other content between a physician and his or her Patients, and among Providers.
2. Secondary Tool; Not a Healthcare Provider; No Medical Advice.
Notice to Patients: ListenMD is not a healthcare provider, and the Services do not include the provision of medical care, health care services, or other professional services by ListenMD. Always directly contact your Provider or other qualified healthcare provider with any questions regarding your personal health or medical conditions. If you have or suspect that you have a medical problem or condition, please contact a qualified healthcare professional or 9-1-1 immediately. If any medical advice is provided to you by a Provider through the Services, such medical advice is not provided by ListenMD but is provided by your Provider.
The Services are not intended to provide any healthcare service, as the Services are an informational and communication resource designed to assist healthcare practitioners in caring for their patients and/or to serve end-users viewing this service as a supplement to, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Patients should not and must not rely on the Services as their primary tool for communicating, gathering, storing, updating sharing or assessing health information including changes to a patient’s health status. The Services might not function as intended. Individuals using the Services assume full responsibility for the use of the Services and agree that we are not responsible or liable for any claim, loss, or damage arising from the use of the Services.
While the Services may enable Patients to communicate with their Providers, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between Patients and their Providers. In addition, we are not responsible for and we expressly disclaim all liability that may result from information made available by Patients or Providers, and the conduct of Patients and Providers, whether online or offline. ListenMD does not sponsor, endorse, recommend or approve of any Provider, nor do we make any representations or warranties about the quality, timing or legality of the products or services they provide. Additionally, we cannot and do not represent or warrant that any Provider is licensed, qualified, insured or capable of performing any product or service, and we make no representations or warranties about the suitability, reliability or accuracy of the products and services they provide.
The Services are not targeted toward or intended for use by anyone under the age of 18. By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one ListenMD Account (as defined below), and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
5. Accounts, Account Security, and Communication Preferences.
To access and use certain features of the Services, you will be provided a unique PIN or a text message with a link to a login page. In some cases, you will then need to register for an account (“ Account ”) by creating a password and providing your name, email address, phone number and PIN. If you register for an Account, you must provide accurate Account information and promptly update this information if it changes. Your failure to provide accurate Account information may result in inaccurate matching of information from Providers. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.
By creating an Account, you also consent to receive electronic communications from ListenMD (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., information from your Providers, payment authorizations, password changes and other transactional information) 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. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
6. Additional Terms Applicable to Providers.
In addition to the other provisions of these Terms, the following provisions, as well as the Business Associate Addendum ( BAA), apply specifically and solely to Providers:
6.1. Registration . Certain aspects of the Services are available only to Providers who register with us. To register with us as a Provider, you must be of legal age to form a binding contract. When you register, you will confirm that you are the health provider you claim you are, and you will confirm your cell phone and choose a PIN. You are responsible for safeguarding and maintaining the confidentiality of your PIN and you agree not to disclose it 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 registered Account, whether or not you have authorized such activities or actions. You must notify us immediately if your telephone or PIN has 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 Website 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. This information includes, but is not limited to, your name and e-mail address. When you, as a “Practice Administrator” add doctors or staff members to your practice, you will verify their names and cell numbers because they will have access to your patients and messages. You are responsible for the acts and omissions of any doctors or staff members that you grant access to use the Services. You are responsible for revoking access rights to any staff member or doctor who has left your practice. If you provide your health care services through, or on behalf of a 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 as a Provider. No individual, other than the individual Provider registering as a Provider, may use the Services under the Provider’s Account information.
6.2. Qualifications . 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 Services, (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 Services. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties.
6.3. 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 ListenMD. You shall be responsible for the supervision, direction, control, compensation, benefits, and withholdings of all of your employees.
6.4. Confidentiality . To the extent you receive any confidential information of ListenMD in connection with your use of the Services, including but not limited to information concerning fees, marketing plans, financial results, Patients, Providers, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by ListenMD 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 or Providers that you collect through the Services to any third party without the express written consent of ListenMD.
7. Responsibility for Your Care; Provider Credentials.
Each Patient’s health care is solely the responsibility of themselves and their respective Provider(s). Providers are the exclusive providers of any health advice and services provided through the Services. ListenMD supports Providers by providing them with certain rights to access and use the Services. However, under the Services, Providers have the exclusive control and responsibility for the delivery of health care services.
Each Provider, and not ListenMD, is responsible for, and represents and warrants that it obtained the informed consent from his or her Patients to any diagnosis or treatment, including without limitation, consent to use telehealth in the course of any services provided through the Services, to the extent such consent is required by any applicable law or agreement.
ListenMD is not responsible for credentialing Providers, makes no representation regarding the accuracy of Providers’ credentials or qualifications, and expressly disclaims any liability for fraudulent credentials or claims by Providers. We recommend that each Patient separately confirm that his or her Provider is qualified and in good standing with his or her respective licensing board(s).
8. Additional Terms Associated with Remote Visits
If your healthcare provider has elected to make clinical services available to you through the Services, by accepting these Terms, you are hereby consenting to receive clinical services delivered via the Services by Providers who are located at sites remote from you to provide consultative services to you. The receipt of clinical services from Providers via the Services is a type of “telemedicine” or “telehealth” service. As with any medical procedure, there are potential risks associated with the use of telemedicine or telehealth services, which may include, without limitation, the following:
- Delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the telemedicine technology, or miscommunications between you and the healthcare provider.
- Security protocols could fail, causing a breach of privacy of personal medical information.
- Lack of access to your medical records or ability to perform an in-person examination, which could result in negative health outcomes (e.g., adverse drug interactions, allergic reactions).
Providers may include behavioral health or primary care practitioners, specialists, and/or subspecialists. The information provided by you to Providers via the Services may be used for diagnosis, therapy, follow-up and/or education, and may include live two-way audio and video and other materials (e.g., medical records, data from medical devices). The scope of the clinical services delivered via the Services will be at the sole discretion of the Provider who is interacting with you, with no guarantee of diagnosis, treatment, or prescription. The Provider will determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter via the Services.
In addition, the following consents and terms apply to Patients receiving clinical services via the Services who are listed in the states listed below (to the extent applicable):
- Connecticut : Your primary care provider may obtain a copy of your records from the telemedicine consultation.
- Kentucky and Nebraska: You have the right to be informed of any party who will be present during the telemedicine service, you can exclude anyone from being present and you can object to the videotaping of the consultation. In addition, you have the right to request an in-person consult immediately after the telemedicine service and you will be informed if such consult is not available.
- Tennessee: You may request an in-person assessment before receiving the telemedicine service.
- Vermont You may request an in-person consultation and will receive one upon request immediately or within a reasonable time after the results of the initial consult.
By accepting these Terms, you acknowledge and accept the risks identified above and the terms associated with the receipt of clinical services via the Services and you give your informed consent to receive clinical services under the terms described herein.
9. User-Supplied Material.
Our Services may allow you to upload, store and share content, including messages, text, photos and other materials (collectively, “User Content”). Except for the license you grant below, as between you and ListenMD, you retain all rights in and to your User Content.
You hereby grant ListenMD a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity).
Any User Content uploaded or sent privately to a Provider is the sole responsibility of the person that submitted it. Although ListenMD reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
10. Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services.
In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s Account without authorization from that user and ListenMD;
- Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Patients from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
- Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
- Bypass or ignore instructions contained in our robots.txt file, accessible here [insert hyperlink], that controls automated access to portions of our Services; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only upload or otherwise share User Content that you have all necessary rights to disclose. You may not upload, store or share any User Content that:
- is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- impersonates, or misrepresents your affiliation with, any person or entity;
- contains any private or personal information of a third party without such third party’s consent;
- contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose ListenMD or others to any harm or liability of any type.
- In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
11. Termination; Cancellation.
We may change the Services, and the ListenMD Content (defined below) at any time. We may discontinue offering our Services, and we may suspend or terminate your right to use our Services at any time, in the event that you breach these Terms, for any other reason, or for no reason at all, in our sole discretion, and without prior notice to you.
All licenses and other rights granted to you by these Terms will immediately terminate upon termination of your right to use our Services or our termination of the Services. These Terms will survive and continue to apply after any suspension, termination, or cancellation, except that your access rights and other rights as a user will be suspended, terminated or cancelled, respectively.
12. Intellectual Property; Limited License.
The Services, and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “ ListenMD Content ”) are owned by or licensed to ListenMD and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, ListenMD and our licensors reserve all rights in and to our Services and the ListenMD Content.
ListenMD hereby grants you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and the ListenMD Content; provided, however, that such license is subject to these Terms and does not include any right to (a) sell, resell our Services and the ListenMD Content; (b) copy, reproduce, distribute, publicly perform or publicly display ListenMD Content, except as expressly permitted by us or our licensors; (c) modify the ListenMD Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the ListenMD Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the ListenMD Content other than for their intended purposes. Any use of our Services and the ListenMD Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
13. Links to Third Parties.
The Services may include links to third-party websites, resources and advertisements (collectively, “Third Party Sites ”). We are not responsible or liable for the availability or accuracy of, and ListenMD does not endorse, sponsor, or recommend any Third Party Sites or the content, products, or services on or available from such Third Party Sites. Your use of Third Party Sites is at your own risk, and ListenMD and its affiliates will not be liable for any of losses arising out of or relating to Third Party Sites.
14. Software Updates
ListenMD may from time to time, in its sole discretion (without obligation), develop and provide updates for our Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (together with Cerner’s updates, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that ListenMD has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the software may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. To that end, based on your mobile device settings, with respect to an App, when your mobile device is connected to the Internet, either (i) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the Services and subject to these Terms.
15. Disclaimer of Warranties.
ListenMD is not itself a provider of health care services, and any healthcare providers that you interact with via the Services are not acting as employees or agents of ListenMD. ListenMD is not a medical provider or telehealth service as such terms may be defined under state or federal laws. While we enable Patients and Providers to communicate with one another, we are not responsible for monitoring such information and communications, and we are not a party to transactions or interactions that may occur between Patients and Providers, whether online or offline. In addition, we are not responsible for and we expressly disclaim all liability that may result from information made available by Users and Providers and the conduct of Patients and Providers, whether online or offline. ListenMD does not sponsor, endorse, recommend or approve of any Providers. Additionally, we cannot and do not represent or warrant that any Provider is licensed, qualified, insured or capable of performing any product or service, and we make no representations or warranties about the expertise, professional qualifications, or quality of work of any Provider, or the suitability, reliability or accuracy of the products and services they provide.
Your use of the Services and ListenMD Content is at your sole discretion and risk. The services and ListenMD Content, are provided on an “as is” and “as available” basis without warranties of any kind.
ListenMD and its licensors and affiliates expressly disclaim all warranties of any kind, express, implied, or statutory, relating to the Services and ListenMD content, including without limitation the warranties of title, merchantability, fitness for a particular purpose, non-infringement of proprietary rights, course of dealing, or course of performance.
We do not control, endorse or take responsibility for any User Content on our Services or content on Third Party Sites linked to by our Services. ListenMD makes no warranty, representation or guarantee with respect to products and services offered by Providers, and ListenMD specifically disclaims any warranty, representation or guarantee with respect to the quality, safety, legality or other characteristics of such products and services, or with respect to the conduct of any Provider in connection with such services.
We make no representations concerning, and do not guarantee, (a) the security, accuracy, reliability, timeliness and performance of the Services, including, but not limited to, any ListenMD Content or its applicability to your individual circumstances, or (b) that the Services will be error free or that any errors will be corrected. Our Services and ListenMD Content are developed for use in the United States and ListenMD and its licensors and affiliates make no representation or warranty concerning the Services or ListenMD Content when they are used in any other country.
No advice or information provided to you by ListenMD will create any warranty that is not expressly stated in these Terms. Some jurisdictions do not permit us to exclude warranties in these ways, so it is possible that these exclusions will not apply to our agreement with you. In such event the exclusions will apply to the fullest extent permitted under applicable law.
16. Limitation of Liability.
In no event will ListenMD, ListenMD’s licensors, affiliates, and our respective owners, directors, officers, employees, contractors, agents and representatives, (collectively, “ListenMD Parties”) be liable to you for any damages whatsoever, including without limitation, indirect, incidental, special, punitive or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of data or lost profits, whether in an action in contract, tort (including but not limited to negligence) or otherwise, including but not limited to any damages caused by or resulting from reliance on information obtained through the Services or from the conduct of you or anyone else (including but not limited to bodily injury, death or property damage), whether online or offline, arising out of or in connection with your use of the Services, or the ListenMD Content, whether the damages are foreseeable and whether or not ListenMD has been advised of the possibility of such damages in advance. If you are dissatisfied with the Services, the ListenMD Content, or these Terms, your sole and exclusive remedy is to discontinue using the Services. If the foregoing is not enforceable against you, in no event will the cumulative liability of the ListenMD Parties to you, whether in contract, tort, or otherwise, exceed the greater of (i) the aggregate amount you paid ListenMD to access or use the Services in the most recent twelve-month period, or (ii) $50.
In no event will the ListenMD Parties be liable for the disclosure of your confidential information by a Provider from whom you receive health care services. ListenMD is not liable to any person or user for any harm caused by the negligence or misconduct of a Provider providing health care services.
Some jurisdictions do not permit us to limit our liability in these ways, so it is possible that these limitations will not apply to our agreement with you. In such event the limitations will apply to the fullest extent permitted under applicable law.
You will indemnify, defend, and hold harmless the ListenMD Parties from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
17.1. your access to or use of the Services, or the ListenMD Content;
17.2. your User Content;
17.3. your violation of any of the provisions of these Terms;
17.4. any activity related to your registration by you or any other person a ccessing the Services through your Account, including, without limitation, negligent or wrongful conduct;
17.5. your conduct in connection with our Services; or
17.6. your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
ListenMD reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
To the fullest extent permitted by applicable law, you release ListenMD and the other ListenMD Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a California resident, you hereby waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
19. Dispute Resolution; Binding Arbitration
Please read the following Section carefully because it requires you to arbitrate certain disputes and claims with ListenMD and limits the manner in which you can seek relief from us.
19.1. 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 10 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 ListenMD agree (a) to waive your and ListenMD’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, resolved in a court, and (b) to waive your and ListenMD’s respective rights to a jury trial. Instead, you and ListenMD 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).
19.2. No Class Arbitrations, Class Actions or Representative Actions
You and ListenMD agree that any Dispute arising out of or related to these Terms or the Services is personal to you and ListenMD, 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 ListenMD 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 ListenMD 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.
19.3. Federal Arbitration Act
You and ListenMD agree that these Terms affect interstate commerce and that the enforceability of this Section 19 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.
19.4. Notice; Informal Dispute Resolution
You and ListenMD 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 ListenMD shall be sent by certified mail or courier to 7050 NW 4th St, Ste 203, Plantation, FL 33317. 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 ListenMD 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 5, 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 ListenMD 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 ListenMD may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 10 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 ListenMD agree that any Dispute must be commenced or filed by you or ListenMD within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and ListenMD will no longer have the right to assert such claim regarding the Dispute). You and ListenMD agree that (a) any arbitration will occur in the State of Florida, Broward County, or in the county in which you reside, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“ JAMS ”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Florida and the United States, respectively, sitting in the State of Florida, Broward County, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. 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.
19.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS 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 19, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section 19, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
19.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website . By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 19 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 19 will remain valid and enforceable. Further, the waivers set forth in Section 19.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
19.9. 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: ListenMD at 7050 NW 4th St, Ste 203, Plantation, FL 33317. 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 20.
20. Governing Law; Venue.
These Terms and our relationship with you will be governed by the laws of the State of Florida, excluding its choice of laws rules. You and ListenMD 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 U.S. District Court for the Southern District of Florida, or the state courts located in Broward County, Florida. You and ListenMD 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 ListenMD agree that ListenMD 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.
The Services may contain typographical errors or other inaccuracies and may not be complete or current. ListenMD reserves the right, but does not have the obligation, to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. ListenMD may refuse to provide Services that are based on inaccurate or erroneous information on the Services, including, without limitation, incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.
These Terms, along with any additional terms and conditions incorporated herein, constitute the entire agreement between you and us relating to our Services and the ListenMD Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Services or the ListenMD Content. If there is any conflict between the Terms and a separate signed written agreement between you and us relating to our Services or the ListenMD Content, the signed written agreement will control.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our Services. Your continued use of our Services will constitute your agreement to the changes we have made. The last date these Terms were revised is set forth at the top of these Terms.
The failure by you or us to enforce any provision of the Terms will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of the Terms is invalid or unenforceable, then the invalid or unenforceable provision will be removed from the Terms or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of the Terms will continue to be valid and enforceable. Nothing contained in these Terms will limit the ability of a party to seek an injunction or other equitable relief without posting any bond. The titles of the Sections of these Terms are for convenience only and will have no legal or contractual effect.
22. Contacting Us.
We encourage you to contact us at info@ListenMD.com if you have any questions concerning our Terms.
APPLE DEVICE ADDITIONAL TERMS
If you access the Apps via a mobile device or tablet branded by Apple, Inc. (“Apple ”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms ”) are hereby made part of these Terms:
- Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
- Agreement with ListenMD, Not Apple. You acknowledge that these Terms are an agreement between ListenMD and you, and not with Apple. ListenMD, not Apple, is solely responsible for any App you access via your Apple Device (“ iOS App ”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “ App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
- Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
- Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If ListenMD decides (in its sole discretion) to provide support and maintenance services for an iOS App, ListenMD is solely responsible for providing such services.
- Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by ListenMD in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is ListenMD’s sole responsibility. Notwithstanding the foregoing, ListenMD is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
- Product Claims. You hereby acknowledge that ListenMD, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that, pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit ListenMD’s liability beyond what is permitted by applicable law.
- Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, ListenMD, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
- Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to ListenMD at (813)702-1506 or info@ListenMD.com. ListenMD’s principal offices are located at 7050 NW 4th St, Ste 203, Plantation, FL 33317.
Provider Business Associate Addendum
I. GENERAL PROVISIONS
Section 1.1. Status of Parties Under HIPAA . The parties acknowledge and agree that Provider (“Covered Entity ”) is a Covered Entity (as defined by HIPAA) and Listen to the Doctor 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.