Docturnal Health Telemedicine Terms Of Service

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AND AGREE TO THE TERMS OF OUR PRIVACY POLICY. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. REVIEW SECTION XIV, AS IT REQUIRES MANDATORY ARBITRATION AND CONTAINS A CLASS ACTION WAIVER.

This Agreement is between you and Docturnal Health, Inc. (“Docturnal”) and grants you access to an Internet-based software service.

DO NOT USE THIS SERVICE FOR EMERGENCY MEDICAL NEEDS. If you experience a medical emergency, call 911 immediately.

DO NOT USE IF YOU ARE A MEDICARE OR MEDICAID BENEFICIARY. By agreeing to these Terms of Service you certify that you are not a Medicare or Medicaid beneficiary. You also agree that you will not submit this claim to a private insurance or other insurance provider for payment.

DO NOT USE THIS SERVICE IF YOU DO NOT WANT TO RECEIVE TEXT MESSAGES OR EMAIL CORRESPONDENCE TO THE NUMBERS AND/OR TELEPHONE NUMBERS THAT YOU PROVIDE. By agreeing to these Terms of Service you are specifically requesting to receive communications to the cell phone number and/or email address provided. These communications may include personal information related to your health care and may contain Protected Health Information as that term is defined by HIPAA. The messages may include links to download health care information such as discharge summaries.

In this Terms of Service Agreement , the terms “you” and “yours” refer to the person using the Service, or in the case of a use of the Service by or on behalf of a minor, “you” and “yours” refer to and include (i) the parent or legal guardian who provides consent to the use of the Service by such minor or uses the Service on behalf of such minor, and (ii) the minor for whom consent is being provided or on whose behalf the Service is being utilized.

 

I. The Service

 

This Agreement providers User access to and usage of an Internet-based software service, including, without limitation its features, functions and user interface (Service). The Service allows you to receive Telemedicine Services from Docturnal’s Clients who are Healthcare Providers. When using the Service, you will be consulting with Healthcare Provider(s) (“Provider”) solely via the use of “Telemedicine”. Telemedicine involves the delivery of healthcare services using audio-visual electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location.

 

II. Data Use

 

By creating an account with the Service, you agree to give Docturnal the right to use your personal information for the purposes of performing under this Agreement. Docturnal will use and protect your personal information pursuant to its Privacy Policy. You also understand that Docturnal is not a health care provider or a Covered Entity under HIPAA and that the information you enter to create an account is not Protected Health Information as that term is defined by HIPAA. Once you establish a Provider-Patient relationship with one of Docturnal’s Clients who is a Covered Entity, any information received by Docturnal Health to provide Services on behalf of that Provider (e.g., for payment purposes), will be created or maintained as part of Docturnal’s role as a Business Associate of that Covered Entity and will be protected by HIPAA. Providers who are not Covered Entities will be bound by all state and federal privacy rules as applicable to their profession.

 

Any Provider-Patient relationships that exist outside the use of this Service or health care not provided through the Service are not covered by these terms.

 

Telemedicine may be used for diagnosis, treatment, follow-up and/or patient education, and may include, but is not limited to, one or more of the following:

 

●        Electronic transmission of medical records, photo images, video, personal health information or other data between a patient and a healthcare provider.

●        Interactions between a patient and healthcare provider via audio, video and/or data communications.

●        Use of output data from medical devices, sound and video files.

 

The electronic systems used in the Service will incorporate network and software security protocols to protect the privacy and security of your information and will include measures to safeguard data to ensure its integrity against intentional or unintentional corruption.

 

III. User Accounts

 

When you register to use this Service, you are required to create an account (“Account”) by entering your real name, email address, password and certain other information collected by Docturnal collectively “Account Information”).

 

To create an Account, you must be of legal age and capacity to form a binding contract. If you are not of legal age or capacity to form a binding contract, you may not register to use our Services.

 

You agree that the Account Information that you provide to us at all times, including during registration and in any information you upload or input to the Service, will be true, accurate, current, and complete.

 

You may not transfer or share your Account password with anyone or create more than one Account (with the exception of sub accounts established for children of whom you are the parent or legal guardian).

 

You are responsible for maintaining the confidentiality of your Account password and for all activities that occur under your Account. Docturnal reserves the right to take any and all action, as it deems necessary or reasonable, regarding the security of the Service and your Account Information.

 

You agree not to use your account to harass, threaten, abuse, stalk, defame or otherwise infringe or violate any other party’s rights.

 

You will not advertise to, or solicit any user or Provider to buy or sell any products or service through the Service.

 

In no event and under no circumstances shall Docturnal be held liable to you for any liabilities or damages resulting from or arising out of your use of the Service, your use of the Account Information or your release of the Account Information to a third party. You may not use anyone else's account at any time.

 

YOU ARE SOLELY RESPONSIBLE FOR ANY ACTIVITY IN YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU, INCLUDING CONTENT PUBLISHED OR PURCHASES MADE THROUGH YOUR ACCOUNT

 

You agree that Docturnal is not a medical provider and that creation of an account on the Service does not create a Provider-Patient relationship. A Provider-Patient relationship only begins between you and the Provider when you are connected to a Provider through the Service. Further, you agree that Docturnal does not provide medical advice or care and does not control the medical advice or care provided by Providers. Docturnal’s sole relationship with Providers is the provision of the service which allows them to provide Telemedicine care to you. Providers are not employed by Docturnal and are not agents of Docturnal. The Providers, and not Docturnal , are responsible for the appropriate quality and level of care provided to you. All references to "treatment" and "services" as mentioned on our website, should in no way be interpreted as healthcare treatment and services provided by Docturnal Health.

 

IV. Other Terms

 

1.      All healthcare services and treatment you receive from a Provider(s) using the Service will be provided using Telemedicine Services. Controlled Substances will not be prescribed through the Service.

 

2.      You understand that connectivity and other internet issues may occur preventing you from connecting to the Service. Docturnal strives to maintain a constant and uninterrupted connection, however, where such failures do occur due to a systems glitch or other causes, your sole remedy will be rescheduling of the Telemedicine Appointment.

 

3.      You agree that it is your Provider’s responsibility to discuss the risks and benefits of the use of Telemedicine and the Service with you and the risks and benefits of any medication or treatment they may prescribe or recommend. You may not use the Service until you have agreed to the informed consent document developed by the Provider who will be providing Telemedicine Services to you.

 

4.      You have the right to withdraw your consent to the use of Telemedicine in the course of your care at any time by ceasing to use the Service. If you wish to continue to see the Provider in a traditional office setting you will need to contact the Provider through other means. Docturnal only provides access to scheduling for Telemedicine visits through the Service.

 

5.      Your Provider will be responsible for retaining medical records for medical care provided through the Service in accordance with applicable state and federal laws. If you want copies of the records it is your responsibility to contact the Provider.

 

6.      You understand that the use of Telemedicine involves electronic communication of your personal medical information to Provider(s) who may be located in other areas, including outside of the state in which you reside. This Service aims to connect you with licensed Providers located within the state you reside in. For the purpose of this, the State which you register which shall be considered the State which you reside in. It is your duty to ensure that Providers you select are those located within your State. You acknowledge that accepting medical advice from providers outside the State which you reside in may be violating State laws and other regulations, and Docturnal will not be held liable in such cases.

 

7.      You understand that it is your duty to provide Docturnal and your Provider(s) truthful, accurate and complete information, including all relevant information regarding care that you may have received or may be receiving from other healthcare providers outside of the Service.

 

8.      You understand that a Provider may determine in his or her sole discretion that your condition is not suitable for diagnosis and/or treatment using the Service, and that you may need to seek health care and treatment with a specialist or other healthcare provider, outside of the Service.

 

9.      You agree that any photographic or other images and documents you submit to the Service for review by the Provider may be retained by the Provider(s) as part of your medical record. To protect the content of such photographs it is your responsibility to delete such photographs from your personal devices or your personal electronic storage.

 

V. Fees

 

You agree that you are responsible for paying fees associated with the Telemedicine visit at the time that you make your appointment.

 

By providing Docturnal with your credit card number or PayPal or Venmo account and associated payment information, you agree that Docturnal is authorized to immediately bill your account for all fees and charges due and payable to Docturnal and professional fees due and payable to your healthcare provider and that no additional notice or consent is required at the time you confirm and schedule your appointment.

 

If your employer or agency has arranged with Docturnal to pay the fee or any portion of the fee, or if the fee is pursuant to some other arrangement with Docturnal, that fee adjustment will be reflected in the fee that you are ultimately charged. Please check with your employer to determine if any Services will be reimbursed.

 

You understand that you are fully responsible for payment of all services set forth herein, for yourself the user and sub-users such as dependent children added to your profile and that you cannot use third-party insurance to pay for these services.

 

 

VI. Refunds/Cancelations/No Shows:

 

You can cancel up to 24 hours before any online visit and we’ll automatically refund your payment in full.

 

If the provider is unable to see you for any reason or if your provider cancels your appointment, we’ll automatically refund your payment in full.

 

VII. We will not issue a refund for the following:

 

●       No Shows

●       Cancelations made within 24 hours of your appointment time for your online visit

 

However, if you make a same day appointment and need to cancel, Docturnal Health will refund you if you cancel within one hour of scheduling and confirming the appointment.

 

Email us at customercare@docturnalhealth.com  or call us at 1-888-354-0874 between 9am and 5pm Eastern Standard, Monday through Friday. We’ll resolve your questions as fast as we can.

 

 

VIII. Account Security

 

You are solely responsible for maintaining the confidentiality of the username and password that you designate during the registration process, and you are solely and fully responsible for all activities that occur under your username and password. You agree to (a) notify Docturnal of any loss or unauthorized use of your username or password or any other breach of security related to your account, and (b) ensure that you exit from your account at the end of each session. Docturnal 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 so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling any auto-sign in feature if you have linked your Docturnal account to any electronic mail service or other account.

 

You understand that use of the Service will require you to communicate personal and potentially sensitive information and it is your responsibility to conduct such communications in a place, time and manner that protects such communications and information.

 

IX. Indemnification

 

You expressly agree to indemnify, defend and hold harmless Docturnal its officers, directors, employees, agents, subsidiaries, affiliates, licensors, and suppliers, harmless from and against any claim, actions, demands, liabilities and settlements, including without limitation reasonable legal and accounting fees ("Claims"), resulting from, or alleged to result from, your violation of these terms and conditions or any malpractice or other claims you may have against a Provider related to use of the Service, including any claims regarding the qualifications or skill of the selected Provider.

 

X. Force Majeure

 

Docturnal will not be deemed to be in breach of these terms or liable for any breach of these terms or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, or other disaster.

 

XI. Intellectual Property Rights

 

Other than content you own, which you may have entered into the Service under these Terms, Docturnal owns all rights to the intellectual property including all rights to the information, content, design, software code, scripts, database structures, trademarks, copyrights, and other intellectual property included in or utilized by the Service, and any updates thereto and material contained in the Service’s website, and all such rights are reserved. You are granted a limited license only, subject to the restrictions provided in these Terms, for purposes of viewing the material contained on the Service’s website.

 

The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to this Agreement, nothing in this Agreement will be deemed to prevent, restrict, or otherwise prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.

 

XII. PROHIBITED USE

 

You acknowledge and agree that you will not:

●       attempt to circumvent or disable the Software or any technology features or measures in the Software by any means or in any manner;

●       attempt to modify, copy, adapt or reproduce the Software except as necessary to use it for normal operation;

●       attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;

●       distribute, encumber, sell, rent, lease, sublicence, or otherwise transfer, publish or disclose the Software to any third party (except as permitted under this Agreement);

●       remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software;

●       use the Software in any manner to aid in the violation of any third-party Intellectual Property, including but not limited to another’s copyrights, trade secrets, and patents;

●       take any action that interferes, in any manner, with the Company’s rights with respect to the Software;

●       attempt to undermine the security or integrity of the Company’s computing systems or where the Software is hosted by a third party, that third party’s computing systems and networks;

●       use, or misuse, the Software in any way which may impair the functionality of the Software, Service, or other systems used to deliver the Software or impair the ability of any other Client to use the Software or Service;

●       attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access; and

●       transmit, or input into the Software or Service, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).

 

You acknowledge and agree that you will not use the Service for any activities, or post or transmit any material from the Service:

 

●       unless you hold all necessary rights, licenses and consents to do so;

●       that infringes the intellectual property or other rights of any person;

●       that would cause you or us to breach any law, regulation, rule, code or other legal obligation;

●       that defames, harasses, threatens, menaces, offends or restricts any person; or

●       that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy.

You agree that we have the right (but not the obligation) to delete any Data or content which in our opinion is in breach of this Section VII.

 

In addition, title, ownership rights and Intellectual Property rights in and to any content displayed on the Service or in the Software, or accessed through the Service or the Software, are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content.

 

You acknowledge that any breaches of this Section may lead to termination of this Agreement.

If we believe that there is a violation of this Agreement that can be fixed by a User Docturnal may ask you to take action to remove it, or Docturnal may remove the content and/or terminate the Agreement.

 

XIII. Access and use Outside the United States

This Service Is Solely Intended For Use Within The United States and should not be used outside the United States. The Service makes no claims that it may not be viewed or accessed from elsewhere, however, you accept that the access or use of the Service may not be legal by certain persons or in certain countries. If you access the Service from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

 

XIV. Binding Arbitration and Governing Law

 

This Agreement shall be governed by New York law, without giving effect to its conflicts of law’s provisions for any dispute between the parties or relating in any way to the subject matter of this Agreement

 

General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this Agreement, Client’s use of or access to the Services (Claim) must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial or international rules of the American Arbitration Association, and the proceeding will be held in Suffolk County, New York. Any judgement on the aware rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Mothing in this agreement prevents either party from seeking injunctive or equitable relieve in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other patty.

 

Optional Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,0000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through biding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties and (iii) any judgment on the award rendered by the arbitrator is final an may be entered in any court of competent jurisdiction.

 

PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING. 

 

XV. No Third-Party Beneficiaries.

 

You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.

 

XVI. Complete Agreement.

 

This Agreement constitutes the sole agreement between you and Docturnal for your use of the Service, and any further statements or inducements, oral or written, not contained in this Agreement shall not bind either you or Docturnal. Any of the terms of this Agreement which are invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this Agreement.

 

XVII. Privacy and Communications.

 

You understand that by checking the “agree” box for these Terms of Use and/or any other forms presented to you on the Service you are agreeing to these Terms of Use, including the use of Communications and that such action constitutes a legal signature. You agree that we may send to you Communications through electronic means including but not limited to: (1) by email, using the address that you provided to us during registration, (2) short messaging service (“SMS”) text message to the mobile number you provided us during registration (“SMS Messages”), (3) push notifications on your tablet or mobile device, or (4) by posting Communications on the Service, which will be accessible by logging into the Service. The delivery of any Communications from us is effective when sent by us, regardless of whether you read the Communication. You can withdraw your consent to receive Communications by deactivating your Account. While secure electronic messaging is always preferred to insecure email, under certain circumstances, insecure email communication containing personal health information may take place between you and Docturnal. Docturnal cannot ensure the security or confidentiality of messages sent by email.You acknowledge and agree that you are solely responsible for providing Docturnal with accurate contact information, including your mobile device number and email address, where we may send communications containing your PHI. Docturnal is not responsible for user errors and omissions.

 

XVIII. Electronic Communications

By using the Site, you acknowledge and agree that Docturnal will send user e-mails relating to your user account and Docturnal promotions. You can opt out of your subscription to Docturnal’s e-mail and sms services at any time by logging in to the Site and changing your notification preferences. You may also be able to unsubscribe to special promotional e-mails by clicking on the unsubscribe link in any of our e-mail communications, under opt-in preferences.

By using the Site and opting to receive emails, text messages, and electronica communications, you acknowledge and agree that Docturnal will be transmitting certain of your protected health information (“PHI”) as that term is defined under HIPAA, electronically. You acknowledge and agree that while Docturnal takes commercially reasonable steps to protect the privacy and security of your PHI, no system is completely secure. You may choose not to receive emails or text messages at time by unsubscribing by logging into your user portal.

 

XIX. Disclosures.

 

All Providers performing health care services through the Service have certified to Docturnal that they hold the professional licenses issued by the professional licensing boards or agencies in the states where they practice, and the degrees listed on their bio. Docturnal requires Providers to attest to the accuracy of this information. Docturnal is not responsible for any inaccuracies in Provider’s bios and your sole remedy for such inaccuracy or misrepresentation is against the Provider. You can confirm a Provider’s license by contacting the relevant professional regulatory in your state, for example, the medical board or psychology board. You can also report a complaint relating to the care provided by a Provider by contacting the professional licensing board in the state where the care was received. In a professional relationship, sexual intimacy is never appropriate and should be reported to the board or agency that licenses, registers, or certifies the licensee.

 

You can find the contact information for each of the state professional licensing boards governing medicine on the Federation of State Medical Boards website at http://www.fsmb.org/state-medical-boards/contacts and governing psychology on the Association of State and Provincial Psychology Boards website at http://www.asppb.net/?page=BdContactNewPG.

 

Docturnal requires Providers to warrant that they have medical malpractice insurance while using the Service, however Docturnal is unable to monitor Providers’ maintenance of such insurance.

 

Docturnal reserves the right, at any time, to modify, alter, or update these Terms of Service by posting the modified, altered or updated terms and notifying you. By clicking accept on the notification, you agree to be bound by such modifications, alterations or updates. If you do not agree to such modifications, alterations or updates, you should terminate your use of the Services. Any such changes will become effective when they are posted. Your continued use of any of the Services following the posting of notice of any changes in this Agreement shall constitute your acceptance of such modifications, alterations and updates.