PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THESE SERVICES. BY USING THE SERVICES OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF. PLEASE REVIEW SECTION 10 CLOSELY, AS IT CONTAINS A BINDING ARBITRATION PROCESS FOR RESOLVING DISPUTES INSTEAD OF USING THE COURT PROCESS.
This Terms of Services forms a legal agreement (“TOS Agreement”) between HomeDoc Technologies, Inc. d/b/a Oxygen, a Delaware corporation (“Us”, “We”, or “Oxygen”), and You (“You”, “Your”, “Yourself”, or “Customer”) concerning Your access to and use of various services offered through (i) our website (here https://www.oxygen.healthcare/) (“Website”) and (ii) various web-based and mobile applications that require You to create an account in order to use any of our services (collectively, “Platforms”).
Your use of the Platforms constitutes Your acceptance of and agreement to be bound by the terms and conditions of this TOS Agreement.
1) Oxygen Software Services.
This agreement provides Customer with access to and the right to use the Platforms as set forth in this TOS Agreement. The Platforms make certain health (including telehealth) care services to You. Before using the Platforms, You will need to register an account and create your personal login information. Because Your account might contain personally identifiable information (“PII”) and/or personal health information (“PHI”), which You should protect, You will need to safeguard Your user ID, password, and other log-on/log-in information and maintain them in a secure location that is inaccessible to anyone else. Do not share them with anyone unless You are certain You want that person to have access to Your PII or PHI. In the event that You suspect or know that Your user account has been used without Your permission, or if You know of any other breach of security, You agree to immediately notify Oxygen via email at email@example.com.
By using the Website and/or the Platforms, You expressly agree to these Terms and Conditions. If You do not agree to these Terms and Conditions, You should immediately cease all use of and access to the Platforms.
Oxygen may, in its sole discretion and without prior notice to You, revise this TOS Agreement at any time. Amended material terms will be added to the Platforms. Each time You access the Platforms, You will need to acknowledge Your agreement to the amended terms as a condition of continuing to use the Platforms. If You do not agree to the terms of the amended TOS Agreement, Your only remedy is to discontinue Your use of the Platforms, resulting in the termination of this TOS Agreement. Amended Terms and Conditions will be effective as of the Effective Date of the TOS Agreement. By accessing or using the Platforms after such changes are posted You signify Your agreement and consent to all previous changes.
2) Use Of Platforms.
a. Oxygen’s Responsibilities. Oxygen shall use commercially reasonable efforts to provide the Platforms.
b. Customer Responsibilities.
i. Customer will not make the Platforms available to anyone other than Customer’s authorized users and in all cases solely to access the Platforms for the exclusive benefit of Customer in compliance with the terms of this TOS Agreement. Customer is solely responsible for the compliance with this TOS Agreement by its employees and contractors. By registering an account on the Platforms, You represent and warrant the following: (i) You are at least eighteen (18) years of age, (ii) You have the legal ability and authority to enter into this TOS Agreement, (iii) the information You have provided to Oxygen during Your registration is accurate and complete, (iv) You will comply with any and all laws applicable to Your use of the Platforms, (v) You will not interfere with any third party’s use and enjoyment of the Platforms, (vi) You will not interfere with or disrupt Oxygen’s or its third party vendors’ security measures, (vii) if any information You provide to Oxygen becomes inaccurate, incomplete or otherwise false or misleading, You will immediately notify Oxygen, (viii) You agree that You are responsible for payment for any service or product provided on or ordered through the Platform, which may not be covered by any insurance company or government or private payer, and (ix) You are accessing the Platforms for Yourself, or for a person (including but not limited to a child under the age of eighteen) for whom you are the legal guardian.
ii. The Platforms are not intended for children under the age of 13. If You are under 13 years of age, please do not use or access the Platforms at any time or in any manner. By using the Platforms, You affirm that You are over the age of 13. Oxygen does not want to obtain personal information from or about persons under the age of 13 without the consent of that person’s parent or guardian.
OXYGEN IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF OXYGEN.
iii. Restrictions and Responsibilities. You may only use the Platforms for Your own personal use. You may not:
- misrepresent Your identity or affiliation in any way;
- gain or attempt to gain unauthorized access to the Platforms or their related systems or networks;
- gain or attempt to gain unauthorized access to other users’ accounts, names, personally identifiable information or other information, or to other computers or websites connected or linked to the Platforms;
- allow any other person to use the Platforms with Your registration or login information;
- use the Platforms to store or transmit infringing, unsolicited marketing content (including emails), libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights);
- sell, resell, rent, or lease the Platforms or otherwise use the Platforms for any other user’s purpose or benefit,
- reverse engineer the Platforms services;
- interfere with or disrupt the integrity or performance of the Platforms;
- post, upload, or otherwise enter any unlawful, infringing, harmful, harassing, defamatory, threatening, hateful or otherwise objectionable material of any kind, or any unsolicited advertising, solicitation or promotional materials;
- modify or copy the Platforms, or create derivative works based on the Platforms or any part, feature, function or user interface thereof;
- except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Platforms or remove or modify any proprietary marking or restrictive legends in the Platforms;
- access the Platforms to build a competitive product or service
- launch or use any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that access the Platforms in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;
- send or otherwise transmit to or through the Platforms any chain letter, unsolicited message, so-called “spamming” or “phishing” messages, or any message marketing or advertising goods and services;
- post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment; or
- use the Platforms in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act, or any spam law (for example, CAN SPAM).
You are solely responsible for Customer Information (defined below) and must use commercially reasonable efforts to prevent unauthorized access to the Platform, must notify Oxygen promptly of any such unauthorized access, and may use the Platforms only in accordance with Oxygen’s scope of authorization and applicable law.
iv. Clinical Support Information; Information Exchange. Customer agrees that the information and materials available through the Platforms are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis and/or treatment. Only qualified medical professionals can give You medical advice, render treatment, or make a diagnosis. Information may be placed in the Platforms by Oxygen and by third parties beyond Oxygen’s control. Oxygen is not responsible for the accuracy or completeness of information available from or through the Platforms. Customer assumes full risk and responsibility for the use of information Customer obtains from or through the Platforms, and neither Oxygen nor any of Oxygen’s licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information. Oxygen does not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials in the Platforms relating to any such products, items or services is not an endorsement or recommendation of them. As to all information and materials, Customer agrees Customer will make an independent determination of the suitability for Customer’s use. Oxygen and its suppliers and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Platforms for any purpose.
3) Additional Terms.
i. Content. Customer may upload or submit content, files and information to the Platforms that is informational, educational, or promotional in nature (“Content”). As between Oxygen and Customer, all Content belongs to Customer, and Customer hereby grants Oxygen a non-exclusive irrevocable, perpetual, royalty-free license to display, store, distribute, share, modify, and otherwise use such Content for purposes providing the Platforms under this TOS Agreement.
ii. Warranties. Customer represents and warrants to Oxygen that:
A. Any Content submitted to the Platforms does not violate any copyright, trade secret, privacy or other third party right;
B. Customer will not submit any Content that is untrue, defamatory, harmful to any person, or violates any HIPAA, state or federal law on patient privacy; and
C. All patient testimonials submitted by Customer are accurate, have the patient’s consent, and comply with ethical guidelines of professional medical associations as well as state and local medical and private practice boards and governing bodies.
iii. Reminders and SMS Messages. Customer agrees that by registering for the Platforms’ services, Customer authorizes Oxygen to send email, fax, phone call, or SMS reminders about upcoming appointments, special offers, and upcoming events. Oxygen is not responsible for any text messaging or data transmission fees. If Customer provides a cellular phone number and agrees to receive communications from Oxygen, Customer specifically authorizes Oxygen to send text messages or calls to such number. Customer represents and warrants Customer has the authority to grant such authorization. Customer is not required to consent to receive text messages or calls as a condition of using the Platforms and may opt out of such messages at any time through the Platforms.
iv. Reviews & Opinions. Oxygen does not endorse, validate as accurate, or necessarily agree with any of the reviews, links, and user-generated content from users or customers on the Platforms. Oxygen reserves the right to refuse to publish any patient review provided by Customer. Oxygen may attempt to send automated or human-based alerts when reviews are provided on third party websites, but Oxygen does not guarantee the accuracy, completeness, or timeliness of such alerts.
v. Advertisements. Customer authorizes Oxygen to place advertisements or messages from third parties on its web pages in limited circumstances. Such advertisements or messages from third parties may be visible to users as well as Customer.
4) Warranty/Service Level Agreement/Disclaimers.
a. Availability. Oxygen will make commercially reasonable efforts to maintain the maximum uptime of its Platforms.
b. Compliance with Laws. Customer represents and warrants to Oxygen that Customer will comply with all applicable laws regarding Customer’s use of the Platforms.
c. No Medical Advice Provided by Oxygen. Oxygen provides a technology platform that facilitates Customer’s access to and communication with medical providers for medical treatment and services. The Platforms are NOT to be used to access emergency medical care or treatment. Oxygen is not a medical provider and does not provide medical advice, provide medical or diagnostic services, or prescribe medication. Oxygen is not an insurance company or an insurance provider of any type. Oxygen is not a pharmacy or prescription fulfillment center or warehouse.
d. Customer’s Assumption of Risk. Customer assumes all risks associated with Customer’s use of the Platforms. Neither Oxygen nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer arising from any use of the Platforms.
e. DISCLAIMERS. OXYGEN DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE PLATFORMS SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE OXYGEN TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE PLATFORMS SERVICES, OXYGEN DOES NOT GUARANTEE THAT THE PLATFORMS SERVICES CANNOT BE COMPROMISED.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by Oxygen, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Oxygen’s Confidential Information includes, without limitation, the nonpublic portions of the Platforms.
b. Protection of Confidential Information. Customer agrees Customer shall use the same degree of care that Customer uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information for any purpose outside the scope of this TOS Agreement. Customer shall make commercially reasonable efforts to limit access to Confidential Information to those of its employees, contractors, and clients (as the case may be) who need such access for purposes consistent with this TOS Agreement and who have signed confidentiality agreements with Customer no less restrictive than the confidentiality terms of this TOS Agreement. The Customer may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable laws or regulations.
c. Exclusions. Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Customer; was known to Customer prior to its disclosure by Oxygen without breach of any obligation owed to the Oxygen; is received from a third party without breach of any obligation owed to Oxygen; or was independently developed by Customer without use of or access to the Confidential Information.
6) Proprietary Rights.
Ownership of Intellectual Property and Reservation of Rights by Oxygen. The software, workflow processes, user interface, designs, know-how and other technologies provided by Oxygen as part of the Platforms are the proprietary property of Oxygen and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain exclusively and at all times with Oxygen. Oxygen is the sole and exclusive owner of the Platforms, including any and all copyright, patent, trademark, trade secret, and other ownership and intellectual property rights, in and to the Platforms and any related materials and documentation. No title or ownership of the Platforms or any portion thereof is or will be transferred to You even if You accept the TOS Agreement. You agree not to change or delete any copyright or proprietary notice related to materials downloaded from the Platforms. Oxygen reserves all rights unless expressly granted in this TOS Agreement.
7) Limits On Liability.
a. No Indirect Damage. Oxygen is not liable for any indirect, special, or consequential damages (including, without limitation, costs of delay, loss of data or information, lost profits or revenues or loss of anticipated cost savings) arising under or related to this agreement or the Services, even if advised of the possibility of such loss or damage.
b. Limit. Oxygen’s total liability for all damages arising under or related to this agreement (in contract, tort, or otherwise) does not exceed the actual amount paid by Customer within the six-month (6-month) period preceding the event which gave rise to the claim. Notwithstanding any statute of limitations or other similar law, any claim by Customer against Oxygen must be brought within twelve (12) months of the event which gave rise to the claim, and if it is not brought within such time period then such claim is expressly waived by Customer.
8) Term, Termination, And Return of Data.
a. Term. This TOS Agreement continues until all services are terminated with or without cause by Oxygen, Customer, or Customer’s healthcare provider. Notwithstanding the foregoing, Oxygen may terminate Customer’s access to and use of the Platforms, at its sole discretion, at any time and without notice to Customer. Customer may terminate this Agreement by deleting Customer’s account on the Platforms. Oxygen may immediately suspend Customer’s access to the Platforms and remove Customer’s information if we in good faith believe that Customer may have violated a law or any term of this TOS Agreement. Oxygen may try to contact Customer in advance, but we are not required to do so. Oxygen may also terminate this TOS Agreement if Customer breaches any material term of the TOS Agreement.
b. Return of Data. Oxygen will have no obligation to provide Customer Information to Customer upon termination of this agreement. Notwithstanding the foregoing, Oxygen will retain Customer Information for sixty (60) days from such termination and Oxygen may provide Customer access to such information upon Customer’s request.
c. Customer Actions upon Termination. Upon termination, Customer must pay any unpaid fees and destroy all Oxygen property in Customer’s possession. Customer, upon Oxygen’s request, will confirm in writing that it has complied with this requirement.
d. Suspension or Termination for Violation of Law or the Agreement. Oxygen may immediately suspend or terminate the Platform services and remove applicable Customer Information or Content if it in good faith believes that, as part of using the Services, Customer may have violated any applicable law or any term of this agreement. Oxygen may try to contact Customer in advance, but it is not required to do so.
a. General Indemnity. To the extent allowed by applicable law, Customer must indemnify, defend (at Oxygen’s option), and hold harmless Oxygen against all third-party claims (including, without limitation, by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:
i. the use of the Platforms by Customer;
ii. any advice, diagnosis, treatment, referral, or other medical or healthcare service provided to or by Customer;
iii. Customer’s breach of any term in this TOS Agreement;
iv. any unauthorized use, access, or distribution of the Platforms by Customer; or
v. violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.
10) Governing Law and Arbitration.
a. Governing Law. This agreement and any action related thereto is governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware (without regard to conflicts of law principles).
b. General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, Customer’s use of or access to the Platforms (Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief 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 party. The arbitration will be held in New Castle County, Delaware or via video communication.
c. 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 $10,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding 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 or online and be solely based on written submissions, the specific manner of which to 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 and may be entered in any court of competent jurisdiction.
d. Enforcement. Notwithstanding Sections 10(b) and 10(c), Oxygen may bring an action to enforce its intellectual property or other proprietary rights in any court of competent jurisdiction.
e. Equitable Relief. Notwithstanding anything above, Oxygen may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this agreement.
f. 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. If this class action and representative action waiver provision is held to be unenforceable, then sections 10.b and 10.c shall also be unenforceable.
11) Other Terms.
a. Consent to Electronic Notice, Communications and Transactions. For purposes of messages and notices about the Services (including, without limitation, collections and payments issues), Oxygen may send email notices to the email address associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), Oxygen may send notices to the postal address provided by Customer. Customer agrees it shall provide, and at all times maintain, current and complete contact information to and with Oxygen. Oxygen shall have no liability associated with Customer’s failure to maintain accurate contact information within the Services or its failure to review any emails or in-service notices. Customer will have the ability to enter into agreements, authorizations, consents, and applications; make referrals; order lab tests; prescribe medications; or engage in other transactions electronically. Customer agrees that its electronic submissions via the Services in connection with such activities constitute its agreement to be bound by such agreements and transactions and applies to all records relating to such transactions. Customer represents and warrants that it has the authority to take such actions.
b. Entire Agreement and Changes. This agreement and the Customer Agreement constitute the entire agreement between the parties and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless signed by both parties. Customer agrees that the Convention on Contracts for the International Sale of Goods does not apply to this agreement. Notwithstanding the foregoing, Oxygen may modify this agreement by posting modified TOS Agreement on the Oxygen website. Customer agrees that by continuing to use the Platforms after posting of the modified TOS Agreement, Customer agrees to be bound by the changes.
c. Feedback. If Customer provides feedback or suggestions about the Platforms, then Oxygen (and those it allows to use its technology) may use such information without obligation or payment to Customer.
d. Beta Features. If Customer is invited to access any beta features of the Platforms or Customer accesses any beta features of the Platforms, Customer acknowledges that: (a) such features have not been made commercially available by Oxygen; (b) such features may not operate properly, be in final form, or be fully functional; (c) such features may contain errors, design flaws, or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) Oxygen is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Platforms services. These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.
f. No Assignment. Oxygen may assign or transfer this TOS Agreement (or its rights and/or obligations thereunder) to any third party without Customer’s consent. Customer may not assign or transfer this TOS Agreement or any other agreement or contract Customer has with Oxygen to any third party without the prior written consent of Oxygen.
g. Electronic Notice. For purposes of messages and notices about the Platforms (including without limitation, collections and payments issues), Oxygen may send email notices to the email addresses associated with Customer’s account or provide in-service notifications. For certain notices (e.g., notices regarding termination or material breaches), Oxygen may also send notices to the postal address provided by Customer. Oxygen shall have no liability associated with Customer’s failure to maintain accurate and current contact information within the Platforms or Customer’s failure to review any emails or in-service notices.
h. Enforceability. If a court or other judicial tribunal having jurisdiction over the parties determines that any term of this TOS Agreement is invalid or unenforceable, all other terms remain in full force and effect.
i. Other Agreements Control. If there is an inconsistency between this TOS Agreement and the Provider Telemedicine Services Agreement, or the Oxygen Billing Services Agreement, or any other agreement between Customer and Oxygen, the other agreement shall prevail.
j. Survival of Terms. All terms survive termination of this TOS Agreement that by their nature survive for a party to assert its rights and receive the protections of this TOS Agreement.
k. Customer Name. Oxygen may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Oxygen, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to Oxygen.