TERMS OF SERVICE DO NOT USE OUR SERVICES OR THE APPLICATION TO SEEK MEDICAL SERVICES FOR SOMEONE WHO HAS ANY SYMPTOMS THAT REQUIRE IMMEDIATE MEDICAL ATTENTION. CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM IMMEDIATELY IF YOU HAVE AN EMERGENCY MEDICAL NEED.
FetchMD (“FetchMD,”“we” or “us”) welcomes you to use our website at http://www.fetchmd.com/, the FetchMD mobile application, (the application and the website are collectively referred to as the “Application”) and the services provided through the Application (collectively, the “Services”). Your use of the Application and Services is governed by these Terms of Service (the “Agreement”) so please read the Agreement carefully before you download, access or use the Application or Services.
BY DOWNLOADING, ACCESSING OR USING THE APPLICATION OR SERVICES, AND/OR BY REGISTERING WITH US OR PROVIDING INFORMATION TO US IN CONNECTION WITH THE APPLICATION, YOU AGREE TO BOUND BY THIS AGREEMENT AS POSTED AND ACCESSIBLE THROUGH OUR APPLICATION OR WEBSITE AT THE TIME OF YOUR ACCESS OR USE AND TO USE THE SERVICES IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OUR PRIVACY POLICY AND ANY ADDITIONAL TERMS AND CONDITIONS THAT ARE REFERENCED HEREIN OR THAT OTHERWISE MAY APPLY TO SPECIFIC FEATURES OF THE SERVICES (ALL OF WHICH ARE DEEMED PART OF THIS AGREEMENT). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS AS SET FORTH IN THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE APPLICATION OR THE SERVICES.
You warrant 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 useby U.S. customers.
Changes to this Agreement
We may change 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 “Last Revised” date at the bottom of the Agreement if we make any such changes. You agree to review this Agreement 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.
The Services We Provide
The Services provided through our Application are designed to enable you to make a request to be connected with an independent medical practice (“Medical Practice”), in order to schedule an appointment (“Appointment”) or to request an on-call licensed physician assistant (“PA”) or advanced practice (“Nurse”), as applicable, to provide non-emergency general adult or pediatric consultations and treatment for common medical conditions at your location (“Visit”). The Providers will not provide treatment for emergent or severe injuries, disorders or medical conditions or services such hospice or psychiatric care. PAs and Nurses are sometimes collectively referred to herein as “Providers.”
For the avoidance of doubt, the capitalized word “Services” as used in this Agreement refers only to our Application and related content and does not refer to any medical consultation or treatment you receive from a Provider. With respect to Visits, our Services are exclusively for account management and to provide you with information regarding a Medical Practice that provides service in your area. No medical care or advice is provided directly to you from our Services or Application.
Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to the Agreement.
Information About Our Services
(i) Appointments. When you make a request for an Appointment, the Application will use the information you have provided to determine whether there is a Medical Practice available close to your location and, after you have selected a physician we will schedule the soonest available Appointment on your behalf. The physicians within the Medical Practice may be included in the provider network under your insurance plan. You are solely responsible for the selection of your physician.
(ii) Visits. You can make a request for a Visit by either a PA or a Nurse based on your medical needs and preference. Upon request for a Visit, the Application will automatically transmit your location which will be used to determine whether a Medical Practice provides services in your area. Once you have elected to request a Visit from an available Provider, we will provide a report of your symptoms and other relevant information to the selected Medical Practice through the Application, if a PA or Nurse, as requested, working with the selected Medical Practice is available, the Provider will then choose whether or not to be dispatched to your location; provided, however, that the Provider may, in his or her best judgment, based on information received prior to the Visit or during the Visit, determine that he or she is unable to provide treatment.
(iii) Selection. While it is the responsibility of the Medical Practice to perform thorough background checks on their physicians and other Providers, we typically utilize the following criteria for evaluating hospitals and physicians featured on our Application:
Specialty board certification
Review of all malpractice infractions
Medical license in good standing
Completion of a specialty-specific application packet to include 12-months of specialty and/or procedure specific clinical quality outcomes data
Top Quartile FetchMD Index Score
(iv) Treatment for Minors. If you are using the Application to obtain Services for a minor under the age of 18, you must be available during the Visit with the minor and you will responsible for payment as well as all of the obligations under this Agreement as they relate to the minor.
(v) Availability. You understand that there may be no Medical Practice or Provider in your area and we cannot guarantee that Providers will be available to provide Services in your area.
(vi) Cancellations. If you need to cancel your Visit you must do so at least 24 hours in advance, otherwise you will be responsible for the payment of the provider fees.
(vii) Prescriptions. Prescriptions may be issued only at the discretion of, and within the authority of, the PA or the Nurse. You must contact your Provider for any refill requests.
(viii) Equipment. You are responsible for all equipment necessary to access the Application.
(ix) Fees. All fees must be paid in advance.
Registration and Membership
You must create a membership account (“Membership”) 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.
We respect your privacy and a complete statement of our current privacy policy can be found at http://www.fetchmd.com/privacy-policy/ (“Privacy Policy”). Our Privacy Policy is expressly incorporated into this Agreement by this reference.
You Must Provide Accurate Information
It is imperative that you provide accurate and truthful information about your identity, your health and physical condition during the registration process. By filling in the Membership information you represent and warrant to FetchMD that all of the personal information you provide during this process is true and correct. We reserve the right to refuse or cancel your Membership or your use of the Application and/or the Services if we determine that you have not provided complete and accurate information.
Eligibility for Membership
You must reside in a jurisdiction located within the U.S. where we provide Services and be 18 years of age or older to use the Application and the Services. 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 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 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. All references in this Agreement to “you” shall refer to such minor.
If you do not qualify under these terms, you may not use the Application or Services. You must notify us immediately of any change in your eligibility to use the Services.
Modification or Discontinuation of Services
We reserve the right at any time and from time to time to modify 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.
Important Information about Medical Practices and Providers
(i) Medical Practices and Providers are Independent. Medical Practices featured on our Application, and their Providers, are not employees of FetchMD. You acknowledge neither your employer nor FetchMD credentials the Medical Practices or Provider or guarantees any outcome. It is the responsibility of the Medical Practice to perform thorough background checks on physicians and PAs to ensure that they are in current good standing with the medical board of their state as well as background checks on Nurses. You acknowledge that your reliance on any Medical Practice and its Providers for treatment or any information given to you by such Providers is solely at your own risk and you assume full responsibility for all risk associated therewith, to the maximum extent allowable by law.
(ii) Consult Your Doctor. Consult your regular licensed health care provider as necessary and before seeking any new treatment or before you alter, suspend or initiate any change in your medical treatment, medication routine or health care related procedure or
4 activity. Do not disregard medical advice issued to you by your regular licensed healthcare provider.
(iii) Agreement with Medical Practice. You may be required to enter into a separate agreement with the Medical Practice providing you with medical services (“Service Agreement”). Service Agreements may include arbitration agreements, privacy policies, medical services consents, and nondisclosure agreements.
(iv) Acknowledgement. THE PROVIDER WITH WHICH YOU ESTABLISH A TREATMENT RELATIONSHIP IS SOLELY RESPONSIBLE FOR PROVIDING YOU WITH MEDICAL SERVICES. BY USING THE APPLICATION OR OUR SERVICES YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT FETCHMD (1) IS NOT A MEDICAL ORGANIZATION, HEALTH CARE PROVIDER OR HOSPITAL, (2) IS NOT STAFFED BY MEDICALLY TRAINED PERSONNEL, (3) IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, AND (4) DOES NOT PROVIDE MEDICAL SERVICES OR ADVICE. WE ONLY ACT AS A TECHNOLOGY PLATFORM TO CONNECT YOU WITH PROVIDERS WHO MAY BE INTERESTED IN PROVIDING YOU WITH MEDICAL SERVICES. YOU ARE SOLELY RESPONSIBLE FOR SELECTING THE MEDICAL PRACTICE,PHYSICIAN OR PROVIDER THAT IS RIGHT FOR YOU.
(v) Disclaimers. WE DO NOT EXPRESSLY ENDORSE ANY MEDICAL PRACTICE, PHYSICIAN ASSISTANT, NURSE OR OTHER PROVIDER FEATURED ON THE APPLICATION. ANY STATEMENTS, PROGRAMS, OPINIONS, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY A MEDICAL PRACTICE OR PROVIDER ARE SOLELY ATTRIBUTABLE TO THE MEDICAL PRACTICE OR PROVIDER AND NOT TO US. RELIANCE ON ANY INFORMATION PROVIDED BY ANY MEDICAL PRACTICE OR PROVIDER ON OR THROUGH THE APPLICATION OR OUR SERVICES IS SOLELY AT YOUR OWN RISK. WE MAKE NO GUARANTEES ABOUT THE RESULTS OR OUTCOME OF ANY MEDICAL TREATMENT YOU RECEIVE FROM ANY MEDICAL PRACTICE OR PROVIDER.
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, ABILITY OR THE EFFICACY, ACCURACY, COMPLETENESS, TIMELINESS OR RELEVANCE OF THE INFORMATION OR ADVICE PROVIDED BY ANY MEDICAL PRACTICE OR PROVIDER AND/OR THE SERVICES PROVIDED BY ANY MEDICAL PRACTICE OR PROVIDER. MEDICAL PRACTICES AND PROVIDERS ARE RESPONSIBLE FOR COMPLYING WITH REGULATORY AND LOCAL REQUIREMENTS FOR MALPRACTICE AND LIABILITY INSURANCE. ALL INTERACTIONS WITH PHYSICIAN ASSISTANTS AND NURSES ARE BETWEEN YOU AND THE LICENSED PROVIDER. BY USING THE SERVICE, YOU AGREE NOT TO HOLD US LIABLE IN ANY WAY FOR ANY MALPRACTICE OR SUBSTANDARD TREATMENT THE PROVIDER MAY RENDER TO YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE.
(vi) Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU, ANY MINOR FOR WHOM YOU ARE RESPONSIBLE, OR ANYONE ELSE IN CONNECTION WITH YOUR USE OF THE APPLICATION OR OUR SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM YOUR USE OF ANY INFORMATION, PROGRAM OR SUGGESTION PROVIDED TO YOU BY A MEDICAL PRACTICE OR PROVIDER OR COMMUNICATIONS OR MEETINGS BETWEEN OR AMONG YOU, ANY MINOR FOR WHOM YOU ARE RESPONSIBLE, AND ANY PHYSICIAN ASSISTANTS, NURSES OR ANY OTHER PERSONS YOU MEET THROUGH THE APPLICATION OR OUR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH PROVIDERS PARTICULARLY IF YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE DECIDES TO MEET OFFLINE OR IN PERSON.
Geo-Location Functionality
The Services include and make use of certain functionality and services provided by third parties that allow us to include maps, geocoding, places and other content from Google, Inc. (“Google”) or Apple (“Apple”) as part of the Services (the “Geo-Location Services”). Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) or Apple’s then current Terms of Use for Apple Maps (http://www.apple.com/legal/internet-services/maps/terms-en.html), as applicable, and by using the Geo-Location Services, you are agreeing to be bound by the applicable Terms of Use.
Fees and Payment Terms
(i) Appointment Fee. The fees that we charge for assistance in making Appointments can be found on or through the Application. We may change our fees from time to time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the Application. It is your responsibility to remain informed about the current fees.
(ii) Provider Fees. The fees that apply for the medical services performed by a Provider during a Visit can be found on or through the Application. We may change the provider fees from time to time. We will give you reasonable notice of any such pricing changes by posting the new fees on or through the Application. It is your responsibility to remain informed about the current fees for the medical services.
(iii) Billing. FetchMD will, on behalf of the Providers, charge you for the medical services provided to you by a Provider. You agree that you will pay for all medical services you receive from the Provider, and that we may charge your credit card account, as provided by you when registering for your Membership, for the medical services including any taxes and late fees, as applicable, that may be accrued by or in connection with your account.
(iv) Your Responsibility and Authorization. You are responsible for the timely payment of all fees and for providing us with a valid credit card account for payment of all fees at all times. Your credit card account information must be complete and accurate, and you are responsible for keeping it up to date. You expressly authorize us to collect the appropriate fees charged for your Membership, Appointments, Visits and for any other purchases you elect to make via the Application.
(v) Payment Processing. We use a third-party payment processor (the “Payment Processor”) to link us to your credit card account. The processing of payments or credits, as applicable, in connection with your Membership and any fees will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to this Agreement. We are not responsible for any errors by the Payment Processor or your credit card issuer. In connection with your use of the Services (and specifically in connection with your scheduling of a Visit with a Provider), FetchMD will obtain certain transaction details, which we will use solely in accordance with our Privacy Policy.
(vi) Insurance. At present we do not process any insurance claims, nor will the Providers process claims on your behalf. Although the medical services you receive from Providers may or may not be covered by your insurance, it is solely up to you to contact your health plan, determine whether coverage applies and submit a claim. You are responsible for the full fee (and for paying the fee in advance) regardless of whether you later are able to receive reimbursement from your health plan for part or all of the cost.
(vii) Government Health Plans. FetchMD and the Medical Practices featured our Application do not accept payment from any state or federal governmental health plan such as Medicare or Medicaid.
Term and Termination
(i) Term and Renewals. Your Membership will continue, unless we terminate it or you notify us by email at [support@fetchmd.com] and/or through our system (receipt of which must be confirmed by email reply from us) of your decision to terminate your Membership.
(ii) Cancellation. If you choose to cancel your Membership, all you have to do is email support@fetchmd.com.
(iii) Termination. We reserve the right, at our sole discretion, to terminate your Membership, at any time.
Account Security
You are responsible for maintaining the confidentiality of your username and password and for all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your username or password or any other breach of security. We will not be liable for any loss or damage arising from your failure to comply with this provision.
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 or Medical Practice, so that others are not able to view, record or intercept your password or other personal information.
7 Intellectual Property Ownership
The Application, including, without limitation, the content, 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 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.
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. FetchMD’s company name, logo and the product names and logos associated with the Services and the Application are trademarks of FetchMD, and no right of license is granted to use them.
License Grant and Restrictions
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, non-commercial use. With respect to any open source or third-party code that may be incorporated in the Application, such open source code is covered 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:
copy, reproduce, license, sublicense, sell, publish, distribute, transfer, assign, display or otherwise commercially exploit or provide access to the Proprietary Materials to any third party in any way;
cause nuisance, annoyance, disruption, or inconvenience to any Medical Practice or Providers;
rearrange, modify, create derivative works using or reverse engineering the Proprietary Materials;
create, scrape or display our content for any purpose;
use the Application or the Services for any unlawful or fraudulent purposes or for sending or storing unlawful or fraudulent materials;
launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application;
post any content from the Application to weblogs, news groups, mail lists or electronic bulletin boards, without our written consent;
use the Application or the Services to design or build a competitive product or service or a product using similar ideas, features, functions or graphics of the Application;or
access the Application or Services through access points or wireless data account (AP) which you are not authorized to use.
Member Conduct
We may, in our sole discretion and with or without notice, terminate your Membership if you misuse the Application or our Services, or if you violate this Agreement including, without limitation, the following rules of conduct:
You may not:
Upload, post, or transmit to any Medical Practice or Providers by any means, or otherwise make available any content or materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
Attempt to impair, interfere with or disrupt our servers or networks;
Impersonate any person or entity, including another Member, Provider, or an employee of FetchMD, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Intentionally or unintentionally violate any applicable local, state, national or international law or any regulations having the force of law;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted;
Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users, any minors, or Members, including usernames or passwords;
Upload, post, email, or otherwise transmit through the Application by any means, content, materials, or comments that could be characterized as “medical advice;”
Stalk or otherwise harass another Member or any of our employees, or any independent Medical Practice or Provider; or
Access or attempt to access another Member’s account in order to use the Application and/or Services.
Disclaimers
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, IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE APPLICATION AND SERVICES ARE PROVIDED “AS-IS”AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. 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.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FETCHMD WILL NOT BE LIABLE TO YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, 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: (1) YOUR USE OF, OR INABILITY TO USE, THE APPLICATION OR THESERVICES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR DATA MADE AVAILABLE THROUGH THE SERVICES; (2) ANY SERVICES PERFORMED BY ANY PROVIDERS THAT YOU CONNECT WITH VIA THE APPLICATION (INCLUDING CLAIMS OF MEDICAL MALPRACTICE AGAINST THOSE PROVIDERS); (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (4) ANY OTHER MATTER RELATING TO THE APPLICATION, THE SERVICES OR THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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. 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.
Indemnification
You agree to defend, indemnify, and to hold harmless FetchMD, FetchMD’s 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 losses, expenses, damages, liabilities, penalties, claims, causes of action, and demands (including the collection costs, expenses and attorneys’ fees on account thereof) arising, resulting from or relating to: (a) your use of, or inability to use, the Application or our Services; (b) an alleged or actual violation of this Agreement by you or any other person using your account; or (c) your violation of the rights of another. Your agreement to defend, to indemnify, and to hold harmless FetchMD, FetchMD’s affiliates, and each of its and their respective directors, officers, managers, employees, shareholders, agents, representatives, licensors, successors and assigns, applies whether a claim against us is based in contract or tort (including strict liability), 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 your termination of or cessation of use of the Application and/or Services.
Third Party Web Sites, Products and Services
The Application and/or Services may link to or promote websites, products and/or services from other companies, such as independent Medical Practices. You agree that we are not responsible for, and do not control, those websites or any third party products or services. We encourage you and any minor for whom you are responsible to be aware of this when you leave the Application or click on links controlled by third parties, and to read the legal notices and privacy policies of each and every location you visit. Your use (or that of any minor for whom you are responsible) of a third party product, service or website will be subject to such third party’s terms of use, privacy policy and any other applicable terms and conditions.
Promotions and Offers
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 Members and other 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.
Notice of Copyright Infringement
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:
- a description of the copyrighted work that you believe has been infringed;
- a description of the material that you claim is infringing the copyrighted work identified in #1, and a detailed description of where it is located on our Application;
- your contact information including address, telephone number, and email address;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, affirming that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
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
Email: copyright@fetchmd.com
General Terms and Conditions
(i) Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, United States of America, without regard to any conflict or choice of law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement or in any way related to the Application or the Services will be an appropriate federal or state court located in San Antonio, Texas. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(ii) Entire Agreement. This Agreement, including any documents incorporated herein by reference, contains the final and entire agreement between us regarding your use of the Application and our Services for yourself, a member of your household or for any minor for whom you are responsible, and supersedes all previous and contemporaneous oral or written agreements regarding your use of the foregoing.
(iii) Severability. If any provision in this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall continue to be enforceable. If any provision in this Agreement is deemed unlawful, void or unenforceable, then that provision is deemed severable from this Agreement and the remaining provisions are still valid and enforceable.
(iv) Amendments. No amendments, modifications or waivers to this Agreement shall be valid unless in writing and signed by all parties.
(v) Assignment; Beneficiaries. This Agreement is personal to you, which means that you may not assign your rights or obligations under this Agreement to anyone. We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of oursuccessors, assigns and licensees.
(vi) No Continuing Waiver. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under the Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
(vii) Notices. By using the Application, you agree to receive certain electronic communications from FetchMD. You agree that any notice, agreement, disclosure or other communication that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address.
(viii) Survival. Any and all provisions of this Agreement that would reasonably be expected to be performed after the termination or expiration of this Agreement shall survive and be enforceable after such termination or expiration including, without limitation, provisions relating to ownership, indemnification, limitation of liability and governing law.
Last Revised: November 28, 2016