VitalCheck-Doctors In Your Office
Terms of Service
September 20, 2020
As part of the VitalCheck-Doctors In Your Office Program (the “Program”), VitalCheck Wellness, Inc., the administrative agent for the Program (“VitalCheck Wellness”), will arrange appointments for you at your place of work or other designated location or via a telemedicine appointment with health care providers retained by ED Medical, P.C., a New Jersey medical practice (“ED Medical”), as independent contractors (each, a“Healthcare Provider”) to provide you with medical services (“Medical Services”), which may include an annual wellness examination and other medical examinations and tests, and related medical, diagnostic and preventive health services to detect and prevent illness, disease and other health related problems (“Medical Services”). In addition, VitalCheck Wellness will manage, forward and share your health history forms and other health-related information with ED Medical and the Healthcare Providers or with yourself via an online patient portal. VitalCheck Wellness may also provide other administrative services to ED Medical and the Healthcare Providers as administrative agent for the Program (such services are referred to herein as the “Services”).
As part of its Administrative Services, VitalCheck Wellness provides you with access to our proprietary technology platform and an interactive website (the “Platform”). Use of the Platform and our website(s) at klarionwellness.com, doctorsintheoffice.com, getvitalcheck.com (collectively, the “Services”) is governed by the terms and conditions of this Agreement. The Platform (which includes content) is intended for access and use only by U.S. customers. Please read these terms and conditions of use (the “Agreement”) carefully before accessing or using the Platform. Throughout this Agreement, VitalCheck Wellness is referred to as “we” or “us.”
General Terms and Conditions
The Web is an evolving medium. If we need to change the terms of this Agreement in the future, we will post the revised Terms and Conditions of Use through our Platform or website and update the “Last Revised” date, below, to reflect the date of the changes. You agree to review these Terms and Conditions of Use each time you use the Services so that you are aware of any modifications made to this Agreement. By continuing to access or use the Services after we post such changes, you agree to the terms of this Agreement, as modified.
What Service does VitalCheck Wellness Provide?
The Services are designed to offer information and a means to enable you to obtain telephonic, email, electronic messaging, SMS and in-person consultations and treatment by facilitating the connection and communication between you and the Healthcare Providers. For the avoidance of doubt, the capitalized word “Services” as used in this Agreement refers only to our Platform, website and related content and does not refer to the in-person consultations, treatment or the content of communications that users receive from Healthcare Providers.
When you use action-oriented features on VitalCheck Wellness you agree that VitalCheck Wellness may send you automatically via e-mail, mobile telephone or other contact information provided by you in your account settings, content including but not limited to, reminders relating to health checklists or doctor recommended actions for you. As a result, the content in those reminders may contain protected health information under HIPAA, including content related to conditions, treatments, and medications. You understand and agree that by using these features, you are opting into receiving your own protected health information by email, SMS or mobile telephone notification, which is not secure. You also understand and agree that by receiving such protected health information by e-mail, SMS or mobile telephone notification, you will be charged by your wireless or internet provider and that such e-mails, SMS or mobile telephone notification may be generated by an automated dialing system.
How to Use the Platform?
To use the Platform, you first need to sign up with VitalCheck Wellness. When signing up, you are obligated to provide us with certain information, such as your name, address, date of birth, email address and insurance information. Upon successful completion of the sign up process, we will provide you with a personal account, accessible for you via a password-protected link in your inbox or via a password of your choice.
You have to be 18 years of age or older and reside in a jurisdiction in which we offer the Platform to use the Platform. If you reside in a jurisdiction that restricts the use of the Platform because of age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Platform. You represent that you are of legal age to enter into a binding contract.
The Platform is designed to enable you to book an appointment for non-emergency medical consultation services with a Healthcare Provider arranged by ED Medical and Klarion. After your booking, the Platform will book the appointment for you to see a Healthcare Provide at the appointed time and place or by telephone or video. After the appointment with the Healthcare Provider, the Platform prepares the claim for submission by ED Medical to your insurance carrier.
You understand that you should never delay seeking advice from your primary care physician or other health professionals due to information provided by the Healthcare Provider either in-person or through the VitalCheck Wellness Services. You agree to seek emergency help when needed, and continue to consult with your primary care physician or a specialist as recommended by the healthcare provider and by your primary care physician.
You understand that if your medical condition warrants emergency help, the Healthcare Provider will direct you to the nearest local hospital emergency department or emergency room.
VitalCheck Wellness is the provider of certain administrative services to the Healthcare Provider and does not provide professional medical services.
VitalCheck Wellness is not a healthcare provider and does not practice medicine and does not participate in or interfere with the practice of medicine by the Healthcare Providers either in-person or via VitalCheck Wellness Services. Each Healthcare Provider is responsible for his or her services and compliance with the requirements applicable to his or her profession and license.
In the event that a Healthcare Provider recommends that seek further evaluation or treatment from your primary care physician or from a specialist, you agree to consult with your primary care physician or a specialist in person for follow-up treatment; and/or seek treatment, if necessary, at a local hospital emergency department.
VitalCheck Wellness IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, DOES NOT PROVIDE MEDICAL SERVICES, AND IS NOT A HEALTH CARE PROVIDER. THE HEALTHCARE PROVIDER WITH WHICH YOU ESTABLISH A TREATMENT RELATIONSHIP IS SOLELY RESPONSIBLE FOR PROVIDING YOU WITH MEDICAL SERVICES. WE ONLY ACT AS A TECHNOLOGY PLATFORM TO PROVIDE ADMINISTRATIVE SERVICES TO THE PROGRAM AND CONNECT YOU WITH A HEALTHCARE PROVIDER .
You are entering into a physician-patient relationship with the Healthcare Provider.
You understand that you should never delay seeking advice from your primary care physician or other health professionals due to information provided by a Healthcare Provider through Klarion Wellness. You agree to seek emergency help when needed, and continue to consult with your primary care physician as recommended by the Healthcare Provider and by your primary care physician.
You understand and agree that a consultation of the Healthcare Provider with another healthcare professional may involve the communication of your medical information, both orally and visually, to physicians and other health care practitioners located in other parts of the state/jurisdiction or outside of the state/jurisdiction.
You represent and warrant to us that, to the extent you enter “protected health information” (as such term is defined under HIPAA) for a third person, you are legally authorized to do so on behalf of such third person, and such third person has validly consented to your inputting of, and your review of, “protected health information” of such third person on VitalCheck Wellness website and mobile apps.
Your Use of the Services
You represent and warrant that the information you provide to us is accurate and complete. You acknowledge and agree that we are entitled at all times to verify the information provided and to deny your use of the Services at any time for any reason or no reason.
You may only access the Services using authorized means. It is your responsibility to check to ensure you download the correct Platform for your device. We are not liable if you do not have a compatible device or if you download the wrong version of the Platform for your device.
By accessing or using the Services, you further agree that:
- You will only use the Services for your sole, personal use
- You will not copy or distribute the Services or other Services content
- You will not upload or transmit any communications or content of any type that infringes or violates any rights of any party;
- You will not use the Services for any purpose in violation of local, state, federal or international laws;
- You will not use the Services as a means to distribute advertising or other unsolicited material to any third party;
- You will not impersonate another person;
- You will not post material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity as determined by us in our sole discretion;
- You will comply with all applicable third party terms of agreement when using the Services (e.g., your wireless data service agreement);
- You will ensure that no unauthorized person shall have access to your device or your Klarion Wellness passwords or accounts;
- You will promptly notify us in the event your VitalCheck Wellness passwords or accounts have been compromised;
- You will not assign or otherwise transfer your account to any other person or entity;
- You will not try to harm the Services or impair the proper operation of the network in any way whatsoever; and
- You will provide us with whatever proof of identity we may request.
We reserve the right to immediately terminate your use of the Services should you fail to comply with any of the foregoing rules.
You are free to establish a hypertext link to our Services so long as the link does not state or imply any sponsorship of your website or service by us or by our Services. However, you may not, without our prior written permission, frame or inline link any of the content of our Services, or incorporate into another website or other service any of our material, content or intellectual property.
There is no charge to register with us to use the Platform. Your medical insurance carrier will be charged only when you actually use the Services. ED Medical and VitalCheck Wellness shall, on behalf of the Healthcare Provider, charge your insurance carrier or your employer for the medical services provided to you by that Healthcare Provider. The insurance carrier’s or employer’s payment for the medical services will be paid directly to ED Medical and includes a portion that is retained by us for our Services in connection with the Program.
You agree that you consent to the Healthcare Provider either billing your insurance carrier or your employer for medical services rendered or engaging VitalCheck Wellness or another entity to bill your insurance carrier on behalf of the Healthcare Provider for the medical services . You agree that a representative of ED Medical or VitalCheck Wellness or any other entity appointed by one of them can contact your insurance carrier on your behalf as your proxy to determine your eligibility for the Medical Services and insurance benefits. You agree that any payment made by your insurance carrier or employer is non-refundable.
Intellectual Property Ownership
VitalCheck Wellness alone (and its licensors, where applicable) shall own all right, title and interest, including all intellectual property rights, in and to the Platform and Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Platform and Services shall be owned solely and exclusively by VitalCheck Wellness, and/or, as applicable, VitalCheck Wellness’s third-party vendors, as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights, worldwide therein and thereto, and you hereby assign to VitalCheck Wellness any and all of your rights, title or interests in the Platform or any modification to or derivative work of the Platform. You shall not remove or authorize or permit any third party to remove any proprietary rights legend from the Services.
This Agreement does not constitute a sale and does not convey to you any rights of ownership in or related to the Platform, or any intellectual property rights owned by VitalCheck Wellness. VitalCheck Wellness’s name, logo and the product names and logos associated with the Platform and Services are trademarks of VitalCheck Wellness, its affiliated companies or third parties, and no right of license is granted to use them.
The materials on the Platform and Services are owned by us and/or other applicable rights holders. Any other use of the materials is strictly prohibited without our prior written permission and the permission of the applicable rights holder(s).
Subject to your compliance with the terms and conditions of this Agreement, if Klarion develops a downloadable version of the Platform, VitalCheck Wellness grants you a limited, non-exclusive, non-transferable license to download and install a copy of the Platform on a device that you own or control and to run such copy of the Platform solely for your own personal use.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform in any way; (ii) modify or make derivative works based upon the Platform; (iii) reverse engineer or access the Platform in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Platform, or (c) copy any ideas, features, functions or graphics of the Platform; or (v) 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 Services.
THE PLATFORM AND ANY INFORMATION CONTAINED ON OR PROVIDED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” BASIS. ANY ACCESS TO OR USE OF THE PLATFORM IS VOLUNTARY. WE WILL REGARD ALL ACCESS OR USE AS VOLUNTARY AND AT THE SOLE RISK OF THE USER.
The Platform and Services are solely designed to enable you to obtain telephonic, email, electronic messaging, SMS and in-person communications and consultations with a Healthcare Provider to receive the Medical Services . NOTHING CONTAINED IN THE PLATFORM OR SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. The services provided in the Platform are here to help arrange an appointment for you with a Health Care Provider and to receive and process your information only. Any information contained in the Platform and Services should not be relied upon as the basis of any health-care decision. The Services do not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment.
NEVER DISREGARD, AVOID OR DELAY IN OBTAINING MEDICAL ADVICE FROM YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ THROUGH OUR PLATFORM OR WEBSITE. IF YOU HAVE OR SUSPECT THAT YOU HAVE A MEDICAL PROBLEM OR CONDITION, CONSULT WITH YOUR HEALTHCARE PROVIDER. HOWEVER, IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CALL 911 FOR EMERGENCY MEDICAL HELP.
We also do not warrant or guarantee that files that may be available for downloading through the Platform will be free of infections or viruses, worms, Trojan horses or other code that contains contaminating or destructive properties.
We, and our technology service providers, cannot and do not guarantee or warrant against errors, omissions, delays, interruptions or losses, including loss of data. You use the Platform at your own discretion and risk, and you are solely responsible for any damages to your hardware device(s) or loss of data that results from the download or use of the Platform. Users of the Platform are responsible for maintaining a means external to the Platform for the reconstruction of any lost data.
WE DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE PLATFORM OR SERVICES, OR WITH RESPECT TO ANY INFORMATION, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICES (INCLUDING ANY CONSULTATIONS OR OTHER SERVICES YOU MAY OBTAIN FROM HEALTH CARE PROVIDERS THAT YOU CONNECT WITH VIA THE SERVICES). WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, CORRECTNESS, TIMELINESS OR USEFULNESS OF ANY INFORMATION, PRODUCTS, SERVICES, MERCHANDISE OR OTHER MATERIAL PROVIDED THROUGH THE SERVICES OR ON THE INTERNET GENERALLY. WE MAKE NO WARRANTY OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THEM.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL VitalCheck Wellness BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT, OR THE USE OF, OR THE INABILITY TO USE, THE PLATFORM OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR DATA MADE AVAILABLE THROUGH THE PLATFORM OR SERVICES OR ANY SERVICES PERFORMED BY ANY HEALTH CARE PROVIDERS (INCLUDING CLAIMS OF MEDICAL MALPRACTICE AGAINST THOSE HEALTH CARE PROVIDERS), EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN THE MAXIMUM LIABILITY OF VitalCheck Wellness FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND MEDICAL MALPRACTICE), OR OTHERWISE) OF EVERY KIND ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATION OF LIABILITY OF VitalCheck Wellness WILL COVER, WITHOUT LIMITATION, ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA, AND ANY OTHER INJURY, ARISING FROM THE USE OF THE PLATFORM.
You agree to indemnify and hold harmless VitalCheck Wellness, VitalCheck Wellness’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 and costs, including reasonable attorneys’ fees, that arise out of your use of the Platform and Services, violation of this Agreement by you or any other person using your account, or your violation of any rights of another. 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.
Modifications to, or Discontinuation of, the Services
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform and 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 Platform or Services or any portion thereof.
Notice of Copyright Infringement
If you are a copyright owner who believes your copyrighted material has been reproduced, posted or distributed through the Platform in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice to firstname.lastname@example.org. Please include the following information in your written notice: (1) a detailed description of the copyrighted work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the Platform; (3) your contact information, including your address, telephone number, and, if available, email address or other electronic address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement. Please note that the contact information provided in this paragraph is for suspected copyright infringement only. Contact information for other matters can be found elsewhere on our website or through the Platform.
VitalCheck Wellness Arbitration Agreement
Choice of Law; Arbitration Clause and Class Action Waiver – Important – Please Review as This Affects Your Legal Rights
This Agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of New York as applied to contracts made and to be performed entirely within New York, without giving effect to the state’s conflicts of law statute. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE PLATFORM OR THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this Agreement to arbitrate. YOU ARE WAIVING THE ABILITY TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.
The Opt-Out deadline for opting out of this Arbitration Agreement has passed.
CLAIMS ARE TIME-BARRED. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
This Agreement constitutes the entire agreement between us and you with respect to the subject matter contained in this Agreement and supersede all previous and contemporaneous agreements, proposals and communications, written or oral, related to that subject matter. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to any conflicts of law provisions contained therein.
This Agreement is personal to you and you may not assign it to anyone. If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. This Agreement is not intended to benefit any third party, and do not create any third party beneficiaries. Accordingly, this Agreement may only be invoked or enforced by you or us. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to use of the Services or this Agreement must be filed by you within one year after such claim or cause of action arose or be forever barred. 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: September 14, 2020
VitalCheck Wellness, Inc. All rights reserved.