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Terms of Service
Effective Date: September 1, 2019
IF THIS IS A MEDICAL EMERGENCY, CALL 911 OR PROCEED TO THE EMERGENCY ROOM. DO NOT USE OUR SERVICES OR THE APPLICATION TO SEEK MEDICAL SERVICES FOR SOMEONE WHO HAS ANY SYMPTOMS THAT REQUIRE IMMEDIATE MEDICAL ATTENTION.
FetchMD (“FetchMD,” “we,” “our” or “us”) welcomes you to use our website at http://fetchmd.com/, the FetchMD mobile applications, (the applications and the website are collectively referred to as the “Application”) and the services provided through the Application (collectively, the “Services”).
These Terms of Service consist of three sections: (i) terms applicable to all users of the Application (“General Terms”); (ii) terms applicable only to Clients (defined below) registered on the Application (“Client Terms”); and (iii) terms applicable only to physician assistants and nurse practitioners registered on the Application (“Provider Terms”). For the avoidance of any doubt, the General Terms apply to all users, both the General Terms and the Provider Terms apply to advance practice nurses and physician assistants and both the General Terms and the Client Terms apply to Clients. Collectively, the General Terms, the Provider Terms and the Client Terms may be referred to as the “Agreement.”
The Services provided through our Application are designed to enable Clients to request a licensed physician assistant (“PA”) or nurse practitioners (“NP”) to provide non-emergency general adult or pediatric consultations and treatment for common medical conditions (“Medical Services”) at the Client’s location or virtually via video-conferencing through the Application (each a “Visit”) and to allow Providers to review and respond to such requests in their area. In addition, the Services include providing access to our system for creating and storing Electronic Medical Records (as defined herein) and offering certain other related products and services. PAs and NPs are sometimes collectively referred to herein as “Providers.” “User,” “users,” “you,” or “your” refer to all persons who access or use the Application and/or the Services (including Clients). “Client” or “Clients” refer to those individuals registered with FetchMD through the Application to engage Providers to provide Medical Services at their home or other location as well as virtually via video-conferencing through the Application.
We may change any section of this Agreement at any time and any changes to this Agreement will become effective when we make the revised Agreement available through the Application. We will update the “Effective Date” at the top of the Agreement if we make any such changes. You agree to review the sections of this Agreement that govern your use each time you use the Application or Services so that you are aware of any modifications made to this Agreement. Your continuing access or use of the Application and/or Services following any change means that you accept the terms of the revised Agreement.
You represent and warrant to us that you have the legal capacity and full authority to accept and perform this Agreement. Although accessible by others, the Services are only intended for access and use by individuals located in the United States.
The Services provided through our Application are designed to enable Clients to request a Visit and to allow Providers to review and respond to such requests in their area, provide Medical Services either in person or virtually via video-conferencing through the Application and access and update the Client’s Electronic Medical Records. Providers will not provide treatment for emergent or severe injuries, disorders or medical conditions or services such as hospice or psychiatric care.
For the avoidance of doubt, the capitalized word “Services” as used in this Agreement refers only to the services offered through our Application and related content and does not refer to any medical consultation or treatment a Client receives from a Provider which is defined as “Medical Services” in this Agreement. With respect to Visits, our Services are exclusively for account management and to provide an online platform to enable Clients to request Visits and Providers to review and respond to requests for Visits in their area and provide access to our system for creating and storing Electronic Medical Records. No Medical Services, medical care or advice is provided to you directly from the FetchMD Application.
Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to this Agreement.
Subject to your compliance with the terms and conditions of this Agreement, FetchMD grants to you a limited, revocable, personal, non-exclusive and non-transferable right and license to download and install a copy of the Application, solely in object code format, on a mobile device that you own or control and to run such copy of the Application and to access our Services using the Application solely for your own personal use. With respect to any open source or third-party code that may be incorporated in the Application, such code is governed by the applicable open source or third-party license, if any, authorizing use of such code.
By using the Application or the Services, you agree that you will not: (i) copy, reproduce, license, sublicense, publish, distribute, transfer, assign, display or otherwise commercially exploit or provide access to the Proprietary Materials (defined below) to any third party in any way; (ii) rent, lease, lend, sell or commercially use, except as allowed herein or otherwise approved in writing by us; or (iii) rearrange, modify, create derivative works using or reverse engineering the Proprietary Materials. If you make use of the Application or the Proprietary Materials, other than as provided herein, in doing so you will be in breach of this Agreement and may be in violation of copyright and other laws of the United States and other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Except as provided herein we do not grant any license or other authorization to any user for the use of our trademarks, registered trademarks, service marks, copyrightable material or intellectual property by including them on the Application.
The Application may be used only for lawful purposes. You are responsible for your own communications, including the upload, transmission and posting of information, and the consequences of such postings on or through the Application. We may, in our sole discretion and with or without notice, terminate your account if you misuse the Application or our Services, or if you violate this Agreement including, without limitation, the rules of conduct contained in this section. FetchMD may delete any information provided by you that it deems, in its sole discretion, fraudulent, abusive, defamatory, and obscene or in violation of a copyright, trademark or other intellectual property or ownership right of any other person.
FetchMD specifically prohibits any use of the Application to, and you and all users agree that you will not use the Application for, any of the following:
Violations of our system or network security may result in civil or criminal liability. FetchMD will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Application, including, without limitation, the following:
You represent and warrant to FetchMD that any information or materials you post on or transmit through the Application for any purpose will not infringe on the intellectual property rights or trade secrets or violate any other rights of any third party. You agree to defend, indemnify and hold FetchMD, its affiliates, and each of its and their respective directors, officers, managers, employees, contractors, shareholders, agents, representatives, licensors, successors and assigns harmless from any and all claims, liabilities, damages, costs and expenses, including court costs, collection expenses and reasonable attorneys’ fees, in any way arising from, related to or in connection with (i) your use or misuse of the Application or the Services, (ii) your violation of these General Terms and the Provider Terms or the Client Terms, as applicable, or (iii) the posting or transmission of any materials on or through the Application by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.
We reserve the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, the Services, or any portion thereof, with or without notice. You agree that we will not be liable to you or any third party for any modification, suspension or discontinuance of the Services or any portion thereof.
You should use particular caution when accessing your account from a public or shared computer or using unencrypted email to discuss private matters with any Provider, so that others are not able to view, record or intercept your password or other personal information.
We may, as part of our Services, encourage you to participate and enjoy our promotions. The following terms and conditions apply to all offers and promotions, unless otherwise stated. By accepting any promotional offer, you agree to be bound by the following additional terms. We reserve the right to send particular promotions to particular users. We may use any personal information you provide to us (including your email address), to provide you (by email or otherwise) with information regarding our contests and promotions.
Price discounts cannot be used together or combined with other discount offers or promotional offers. Promotional offers are intended for the addressed recipient only and cannot be transferred. If you are not the intended recipient, then the offer is null and void. We may request further information from you if you wish to participate in our promotions and offers. Participation in these promotions is completely voluntary. Therefore, you have the choice to decline to participate in any promotion where you are required to provide further information about yourself.
The Application, including, without limitation, the content, data (with the exception of your Electronic Medical Records), metadata, design, organization, compilation, look and feel, the source, object and HTML code and all other protectable intellectual property available through the Services and/or comprising the Application (the “Proprietary Materials”) are the sole and exclusive property of FetchMD or our licensors (if any) and are protected by copyright, trademark, trade secret and other intellectual property laws. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Proprietary Materials or the Services shall be owned solely and exclusively by FetchMD, and/or, as applicable, our licensors, as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights, worldwide therein and thereto. All rights regarding the Proprietary Materials not expressly granted in this Agreement are reserved by us.
You shall not remove or authorize or permit any third party to remove any proprietary rights legend from the Proprietary Materials. The information on the Application including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law, including copyright law.
This Agreement does not constitute a sale and does not convey to you any rights of ownership in or related to the Proprietary Materials, or any intellectual property rights owned by us.
The FetchMD company name, service names and associated logos are trademarks of FetchMD, and you agree not to use or display them in any manner without FetchMD’s prior written permission. Nothing on the Application should be construed to grant any license or right to use any FetchMD trademark without the prior written consent of FetchMD. Product names, logos, designs, titles and words associated with the Services and the Application may be protected under law as trademarks, service marks or trade names of FetchMD. Such trademarks, service marks and trade names may be registered in the United States and internationally.
TO THE FULLEST EXTENT PERMITTED BY LAW, FETCHMD EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING THE APPLICATION AND THE SERVICES INCLUDING WITHOUT LIMITATION ALL CONTENT, FUNCTION AND MATERIALS WHICH ARE PROVIDED “AS-IS”AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. NO ADVICE, RESULTS, INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. To the maximum extent permitted by law, we do not warrant that (i) the Application or the Services will meet your requirements or you will achieve any specific results from use of the Application or the Services, (ii) the operation of the Application will be uninterrupted, error-free, or that the Application or the server that makes the Application available are free of viruses or anything else harmful, or (iii) that any defects or errors will be corrected. To the fullest extent permitted by law, you understand that FetchMD does not make any warranties or representations regarding the use of or content in the Application in terms of their quality, accuracy, adequacy, timeliness, completeness, usefulness, reliability or otherwise. You understand and expressly agree that you download or use the Application at your own risk, and that you will be solely responsible for your use and any damage to your mobile device, computer system or any other device in which you access the Application, loss of data or other harm of any kind that may result. Your sole and exclusive remedy for dissatisfaction with the Application or the Services is to stop using them. If any applicable authority holds any portion of this section to be unenforceable, then our liability and responsibility will be limited to the extent permitted by applicable law. Some states do not permit limitations or exclusions on warranties, so the above limitations may not apply to you.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FETCHMD, ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE TO YOU, ANY MINOR FOR WHOM YOU ARE RESPONSIBLE OR OTHER FAMILY MEMBER FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM: (i) YOUR USE OF, OR INABILITY TO USE, THE APPLICATION OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR DATA MADE AVAILABLE THROUGH THE SERVICES; (ii) ANY MEDICAL SERVICES PERFORMED BY ANY PROVIDER (INCLUDING CLAIMS OF MEDICAL MALPRACTICE AGAINST THE PROVIDER); (iii) THE ACTIONS OR INACTIONS OF ANY CLIENT YOU CONNECT WITH VIA THE APPLICATION; (iv) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (v) ANY OTHER MATTER RELATING TO THE APPLICATION, THE SERVICES, THIS AGREEMENT OR ANY MEDICAL SERVICES. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING MALPRACTICE OR NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT FETCHMD HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE APPLICATION AND THE SERVICES. YOUR ONLY REMEDY AGAINST US FOR USE OF THE APPLICATION OR SERVICES IS TO STOP USING THE APPLICATION. THAT SAID, IF FETCHMD IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THIS APPLICATION OR ANY SERVICES, OUR LIABILITY SHALL NOT EXCEED $100.00 IN THE AGGREGATE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The terms of Agreement that limit liability reflect an informed voluntary allocation of risk; such allocation represents a material part of this Agreement. You agree that the limitations of liabilities set out in this Agreement are fair and reasonable in the circumstances.
If you believe that your copyrighted work has been copied, posted or distributed through the Application in a manner that constitutes copyright infringement, you should provide our copyright agent with a written notice that sets forth the infringement details. To be effective, the written notice must contain the following information:
Please send the written communication to our copyright agent at the following address:
By mail: FetchMD, Attn: copyright agent, 250 W Nottingham, Suite 320, San Antonio Texas 78209
These Client Terms of Service (“Client Terms”) are by and between FetchMD (including its affiliates) and you, as the Client, and govern your access and use of the Application and the Services.
You must reside in a jurisdiction located within the United States (“U.S.”) where we provide Services and be 18 years of age or older to create and account and use the Application and the Services.
If you are between the ages of 13 and 18, you can use the Application or Services only under the supervision of your parent or guardian who has agreed to the terms and conditions contained in this Agreement. If you are under the age of 13, you may not use the Application or Services. If you are the parent or legal guardian of a child under the age of 18, you may use the Application or Services on behalf of such minor child. By using the Application and/or Services on behalf of a minor child, you represent and warrant to us that you are the parent or legal guardian with the authority to make health care decisions for the minor and the minor understands that you will have access to all health information provided via the Application and related to the Medical Services the minor receives. All references in this Agreement to “you” shall refer to such minor.
By using the Application and our Services you represent and warrant to us that you are located in the U.S. and are at least 18 years of age or are the parent or guardian for a minor child. If you are not eligible under these terms, you may not use the Application or Services. You must notify us immediately of any change in your eligibility.
You must create an account in order to access the Services. This is a requirement for everyone whether you are registering as an individual or as an employee through a group plan offered by your employer. During the registration process you will provide certain personal information as well as electronically agree to the Consent for Treatment which is expressly incorporated and made a part of this Agreement by reference.
It is imperative that you provide accurate and truthful information about your identity, health and physical condition during the registration process and that you keep such information updated. By filling in the account information you represent and warrant to FetchMD that all of the personal information you provide during this process is true and correct and that you agree to update such information in a timely manner. We reserve the right to refuse or cancel your account and your use of and access to the Application and/or the Services if we determine that you have not provided complete and accurate information.
THAT SAID, IF FETCHMD IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THIS APPLICATION OR ANY SERVICES, OUR LIABILITY SHALL NOT EXCEED $100.00 IN THE AGGREGATE.
You agree to defend, indemnify, and to hold FetchMD, its affiliates, and each of its and their respective directors, officers, managers, employees, contractors, shareholders, agents, representatives, licensors, successors and assigns, harmless from and against any and all losses, expenses, damages, liabilities, penalties, claims, causes of action, and demands (including any court costs, collection costs, expenses and attorneys’ fees on account thereof) arising out of, resulting from or relating to: (i) your use of, or inability to use, the Application or our Services; (ii) an alleged or actual violation of the Client Terms or the General Terms by you or any other person using your account; or (iii) your violation of the rights of another. Your agreement to defend, to indemnify, and to hold harmless FetchMD and its affiliates, and each of its and their respective directors, officers, managers, employees, contractors, shareholders, agents, representatives, licensors, successors and assigns, applies whether a claim is based in contract or tort (including strict liability or negligence), and regardless of the form of action. We reserve the right to control the defense of any claim for which we are entitled to indemnification under this section. In such event, you agree to provide us with such cooperation as is reasonably requested by us. This indemnification section shall survive any termination or cancellation of your account or cessation of use of the Application and/or Services.
Except as prohibited by Law (as defined herein), any dispute between FetchMD and Client shall be resolved through binding arbitration in San Antonio, Texas under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent FetchMD or Client from filing charges with state or federal agencies. Client agrees that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and Client waives any right to bring class-wide, collective or representative claims before any arbitrator or in any forum. CLIENT UNDERSTANDS THAT BY AGREEING TO ARBITRATE DISPUTES CLIENT IS WAIVING ANY RIGHT THAT HE OR SHE MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of FetchMD or Client to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. In the event of any dispute between FetchMD and Client concerning the terms and provisions of these Client Terms or the General Terms, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys fees and all related costs.
All notices or communications required or permitted under these Client Terms will be made via e-mail (in which cases such notice shall be deemed received on the date of delivery). Notice to FetchMD shall be delivered via email at firstname.lastname@example.org. Notice to Client shall be delivered to the email address provided by Client to FetchMD from time to time.
FetchMD may modify these Client Terms at any time. Such changes will become effective when we make the revised Agreement available through the Application. We will update the “Effective Date” at the top of the Agreement if we make any modifications.
These Provider Terms of Service (the “Provider Terms”) are by and between FetchMD (including its affiliates) and you, as the Provider, and govern your access and use of the Application and the Services.
By using the Application and our Services you represent and warrant to us that you satisfy the following eligibility requirements:
If you are not eligible under these terms, you may not use the Application or Services. You must notify us immediately of any change in your eligibility.
You must create an account in order to access the Services and respond to Client Requests. During the registration process you will provide certain personal information.
It is imperative that you provide accurate and truthful information about your identity, licensing, certification, expertise, skills and other information during the registration process. By filling in the account information you represent and warrant to FetchMD that all of the personal and professional information you provide during this process is true and correct. We reserve the right to refuse or cancel your account or your use of the Application and/or the Services if we determine that you have not provided complete and accurate information.
FetchMD will offer Services to you during those times you choose to be available to receive Requests. You shall have no obligation to use the Services at any specific time or for any specific duration unless otherwise agreed upon in writing. You shall have complete discretion to determine when you will be available to receive Requests. If, however, you agree to be available to receive the Requests, you shall be obligated to abide by the General Terms and these Provider Terms.
You shall be entitled to accept, reject, and select among the Requests received through the Application. You shall have no obligation to accept any Request and may always refuse any Request without penalty. Following acceptance of a Request, however, you must perform the Request in accordance with the requirements and standards set forth in these Provider Terms. Failure to show up and provide the requested services relating to an accepted Request shall constitute a material breach of these Provider Terms and may result in termination of your account.
Provider represents and warrants to FetchMD that the following statements are true as of the date his or her account is registered and will remain true and correct at all times while using the Services to respond to Requests:
Provider shall notify FetchMD in writing immediately upon the occurrence of any one or more of the following events:
FetchMD will maintain occurrence-based medical malpractice insurance to cover the Medical Services rendered by Provider on behalf of Clients in response to a Request made on or through the Application or Services (“Professional Liability Insurance”). The Professional Liability Insurance shall have limit amounts of not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) annual aggregate. FetchMD will notify Provider, no less than thirty (30) days in advance, of any cancellation or non-renewal of the above insurance.
In addition to any other indemnification obligation of Provider, Provider agrees to indemnify and hold harmless FetchMD, its affiliates, and each of its and their respective directors, officers, managers, employees, shareholders, agents, representatives, licensors, successors and assigns from and against any and all claims, damages, losses, liabilities, settlements and expenses (including reasonable attorneys’ fees, court costs and collection costs) (collectively, “Claims”) arising out of, in connection with or resulting from any act or omission of Provider, including without limitation: (i) execution of these Provider Terms or performance of any obligation under the General Terms or the Provider Terms by Provider; (ii) any breach of these Provider Terms by Provider; or (iii) Provider rendering or failing to render Medical Services, including Claims arising out of or resulting from Provider’s negligence or willful or reckless misconduct, in whole or in part, without regard to whether or not such Claims are covered by Professional Liability Insurance.
Except as prohibited by Law, any dispute between FetchMD and Provider shall be resolved through binding arbitration in San Antonio, Texas under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent FetchMD or Provider from filing charges with state or federal agencies. Provider agrees that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and Provider waives any right to bring class-wide, collective or representative claims before any arbitrator or in any forum. PROVIDER UNDERSTANDS THAT BY AGREEING TO ARBITRATE DISPUTES PROVIDER IS WAIVING ANY RIGHT THAT HE OR SHE MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of FetchMD or Provider to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. In the event of any dispute between FetchMD and Provider concerning the terms and provisions of these Provider Terms or the General Terms, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorney’s fees, court costs and all collection expenses.
All notices or communications required or permitted under these Provider Terms may be made via e-mail (such notice shall be deemed received on the date of delivery). Notice to FetchMD shall be delivered to email@example.com. Notice to Provider shall be delivered to the email address provided by Provider to FetchMD from time to time.
FetchMD may modify these Provider Terms at any time. Such changes will become effective when we make the revised Agreement available through the Application. We will update the “Effective Date” at the top of the Agreement if we make any modifications.