PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN SYNCHRONY TELEMED LLC (“SYNCHRONY TELEMED,” “US” OR “WE”) AND YOU (THE INDIVIDUAL, PHYSICAL PRACTICE ENTITY OR HOSPITAL ESTABLISHING AN ACCOUNT WITH SYNCHRONY TELEMED). YOUR USE OF THE SYNCHRONY TELEMED SERVICE (DEFINED BELOW) IS SUBJECT TO THE TERMS SET FORTH HEREIN, WHICH INCLUDE TOPICS SUCH AS THE TERM OF YOUR AGREEMENT, LIMITATIONS OF LIABILITY, DISCLAIMERS, PAYMENT TERMS AND EXPECTATIONS REGARDING HIPAA.
For purposes of this Agreement, the following terms shall have the meanings indicated:
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of implementing and using the Service (as defined below).
"Customer Data" means any data, information or material (including any of your confidential information) that you submit to the Service in the course of using the Service. This also includes the Medicare claims data you will access using the Medicare BB2 API.
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as amended, and all rules and regulations promulgated thereunder.
"Protected Health Information" shall have the meaning given such term in HIPAA.
"Service" means the specific edition or module of Synchrony Telemed’s voice, online and mobile communication and information delivery management tools and applications, billing, or other services identified during the ordering process, developed, operated, and maintained by Synchrony Telemed, accessible via the telephone, mobile device application and website: http://www.hubchart.io or another designated web site or IP address, or ancillary online or offline products and services provided to you by Synchrony Telemed, to which you are being granted access under this Agreement. Synchrony Telemed has the right to change the features or functionality of the Service at any time and from time to time, and may charge additional fees for such features and functionality.
2. Term of Your Agreement / Termination / Suspension.
This Agreement starts when you accept it. You accept this Agreement through any action that indicates your assent hereto, including your execution of this Agreement or a registration form or other document that references your acceptance of this Agreement, or when you begin to use (or through your continued use) of the Service by registering your device number with Synchrony Telemed, or through a “click” or “checkbox” during the registration process,. This is a month-to-month Agreement, and your subscription term will automatically renew at the end of each month until this Agreement and your use of the Service is terminated. Either you or Synchrony Telemed can terminate this Agreement at any time on thirty (30) days’ written notice, such termination to be effective at the end of the last day of the calendar month following the end of the thirty (30) day notice period. However, in addition to the foregoing, we can, without notice, suspend your use of the Service or terminate this Agreement at any time for cause. “Cause” includes, but is not limited to, (i) paying your bill late more than once in any twelve (12) month period; (ii) violation of the terms of this Agreement or (iv) our reasonable belief that you are misusing the Service or using it for any unlawful activity. Neither you nor Synchrony Telemed shall be liable to the other for compensation, reimbursement for investments or expenses, lost profits, loss of goodwill, incidental or consequential damages, or damages of any other kind or character, because of any exercise of its right to terminate this Agreement, as provided hereunder, or because of any election to refrain from extending the duration of this Agreement.
Termination of this Agreement for any reason shall terminate your use of and access to the Service but shall not affect your obligation to pay for Service received or extinguish any right of a party to sue for violation of this Agreement. In addition, the terms of the Paragraphs 6-12 and 15 shall survive any termination of this Agreement.
3. Registration Information.
You agree to provide accurate, current, and complete information required to register with the Service and at other points as may be required in the course of using the Service ("Registration Data"). You further agree to maintain and update your Registration Data as required to keep it accurate, current, and complete. Synchrony Telemed may terminate your rights to any or all of the Service if any information you provide is false, inaccurate or incomplete. You agree that Synchrony Telemed may store and use the Registration Data you provide for use in maintaining your account and billing fees.
4. Pricing/Your Bill.
Subject to any separate written agreement between you and Synchrony Telemed, Synchrony Telemed may change the pricing for its Service thirty-five (35) days prior written notice, such price change to be effective at the beginning of the next calendar month following the end of the thirty-five (35) day notice period. Your bill describes your charges (including any applicable sales tax) and may, from time-to-time, include other important information. You should read everything you receive in your billing statement. We bill base charges and all usage charges monthly, in arrears. You agree to pay your bill within thirty (30) days of the date of the bill. If we do not receive payment in full within such time period, we may, to the extent permitted by law, charge a late fee of up to 1½ percent a month (18 percent annually) or a flat $5 on unpaid balances, whichever is higher. We may also charge for any collection agency fees billed to us for trying to collect from you. We may charge you up to $25 for any returned check, depending on applicable law. If you sign a credit card billing authorization that we accept, you are authorizing us to charge any amounts you owe us, then or later, and to demand immediate payment from the card issuer. If you pay online through the Synchrony Telemed website at http://www.hubchart.io, that payment is made through use of third party payment processor, and payment information you provide is sent directly to that third party. Please be aware that Synchrony Telemed does not control, nor are we responsible for, the privacy policies or information practices of the third party payment processors. You should review the privacy policies posted on its site. See Paragraph 14, “Privacy,” below.
5. Grant of License; Restrictions.
Synchrony Telemed hereby grants you a non-exclusive, non-transferable right to use the Service, solely for your personal purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Synchrony Telemed.
Without limiting the generality of the foregoing, except as otherwise provided herein, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You shall not knowingly use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
6. Proprietary Rights.
Synchrony Telemed, or its licensor(s), retains all rights, title and interest in and to the Service, including all source code, object code, data, information, copyrights, trademarks, patents, inventions and trade secrets embodied therein, and all other rights not expressly granted to you hereunder. Nothing in this Agreement constitutes a waiver of any of Synchrony Telemed’s rights under the intellectual property laws of the United States or any other jurisdiction or under any other federal, state, or foreign laws.
7. Customer Data.
Synchrony Telemed does not own Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Synchrony Telemed shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
8. LIMITATION OF LIABILITY
Synchrony Telemed promises to use commercially reasonable efforts to ensure maximum reliability and availability of THE service, but we cannot promise that THE service will be available at all times uninterrupted. To the fullest extent permitted by law, you agree as follows: our maximum liability to you is limited to a refund or rebate of charges FOR SERVICES PAID FOR BUT NOT RECEIVED. These limitations apply no matter what the theory of liability, whether fraud, misrepresentation, breach of contract, personal injury, product liability, or anything else. These limitations also mean that you are waiving, to the fullest extent permitted by law, attorneys’ fees and any punitive, treble, consequential, indirect, or special damages.
9. HIPAA Compliance.
Both Synchrony Telemed and you agree not to use or disclose individually identifiable information in violation of HIPAA. While we offer various products and services that can significantly reduce privacy and security risks when used as part of your comprehensive HIPAA risk management plan, HIPAA compliance requires your active participation. If you share your PHI or personal data with your provider, you acknowledge and agree that it is the responsibility of your provider to conduct a HIPAA risk analysis and maintain a comprehensive HIPAA risk management program that includes appropriate physical, technical and administrative safeguards (including training of authorized users on your policies and procedures) with regard to Protected Health Information (as defined by HIPAA), including without limitation as to the particular risk areas noted in the disclaimers below.
10. DISCLAIMER: CERTAIN THIRD PARTY SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT FUNCTIONALITIES, CAPABILITIES OR SERVICES PROVIDED TO YOUR AUTHORIZED USER DIRECTLY BY THIRD PARTIES ("THIRD-PARTY SERVICES"), INCLUDING, WITHOUT LIMITATION, SERVICES THAT ARE INNATE TO A PARTICULAR MOBILE DEVICE (SUCH AS USE OF "Siri" DICTATION SERVICE ON AN iPHONE) ARE NOT PROVIDED BY Synchrony Telemed AND DO NOT CONSITUTE "SERVICES" UNDER THIS AGREEMENT. YOU REMAIN SOLEY RESPONSIBLE FOR ADOPTING APPROPRIATE SAFEGUARDS WITH RESPECT TO SUCH THIRD-PARTY SERVICES (INCLUDING, WHERE APPROPRIATE, POLICIES AND PROCEDURES PROHIBITING AUTHORIZED USERS FROM USING CERTAIN THIRD PARTY SERVICES TO SEND, RECEIVE, MAINTAIN OR TRANSMIT PROTECTED HEALTH INFORMATION), AND FOR THE ACCURACY, SECURITY AND PRIVACY OF COMMUNICATIONS SENT, RECEIVED, MAINTAINED OR TRANSMITTED USING SUCH THIRD-PARTY SERVICES, INCLUDING, PUTTING IN PLACE BUSINESS ASSOCIATE AGREEMENTS WITH ANY SUCH THIRD PARTIES, IF REQUIRED BY HIPAA.
11. DISCLAIMER: COMMUNICATIONS MADE OUTSIDE OF Synchrony Telemed PLATFORM.
TEXTING AND OTHER COMMUNICATIONS OF PROTECTED HEALTH INFORMATION THAT YOU OR YOUR AUTHORIZED USERS REQUEST Synchrony Telemed TO RELAY OUTSIDE OF THE Synchrony Telemed COMMUNICATIONS PLATFORM (INCLUDING, FOR EXAMPLE, WHERE YOU OR AN AUTHORIZED USER REQUEST THAT Synchrony Telemed RELAY A MESSAGE BY SMS TEXT AND/OR FORWARD MESSAGES TO A THIRD PARTY EMAIL SERVICE) POSE HEIGHTENED PRIVACY AND SECURITY RISKS. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE, AS PART OF YOUR HIPAA RISK ANALYSIS, WHETHER TO PROHIBIT OR PERMIT SUCH COMMUNICATIONS AND, TO THE EXTENT SUCH COMMUNICATIONS ARE PERMITTED, TO IMPLEMENT APPROPRIATE SAFEGUARDS (INCLUDING POLICIES, PROCEDURES AND TRAINING OF ALL AUTHORIZED USERS) TO MANAGE THESE RISKS TO A REASONABLE AND APPROPRIATE LEVEL CONSISTENT WITH HIPAA.
12. Acceptance of Business Associate Addendum as Default Standard.
You hereby authorize and direct us to communicate outside of our Synchrony Telemed communications platform as necessary for the Service, including without limitation, to make communications to any mobile device and in any manner (including by SMS text) designated by you or any authorized user. We agree to comply, within thirty (30) days of our receipt of same, with your reasonable direction to us as to the types and amounts of Protected Health Information that may, consistent with your risk analysis, be included in any such communications originating from us, or with any written direction from you prohibiting us, consistent with your risk analysis, from relaying communications of Protected Health Information outside of the Synchrony Telemed communications platform. Any additional costs associated with our compliance with such directives shall be borne by you.
13. Direction as to Communications Outside of Synchrony Telemed Platform.
By accepting this Agreement, you agree that our use or disclosure of Protected Health Information under this Agreement or otherwise in connection with the provision of the Service to you shall be governed by the form of Business Associate Agreement maintained from time to time by Synchrony Telemed on its website at (the “Business Associate Addendum”). You acknowledge and agree that we may amend the terms of the Website Business Associate Addendum from time to time and that such amended terms shall be effective upon posting to our website. We both agree that this Paragraph 13 shall be of no force and effect, and the Website Business Associate Addendum shall not apply, to the extent there the parties otherwise maintain during the term in full force and effect a written Business Associate Agreement signed by both parties that complies with HIPAA (or is deemed to comply with HIPAA as a result of “grandfathering” during the period of such deemed compliance).
You agree to defend, indemnify and hold harmless Synchrony Telemed from and against any and all actions, causes of action, suits, claims, demands, damages, liabilities, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) your use of the Service or any Content or (ii) your violation of this Agreement.
16. Modification/Amendment of this Agreement.
This Agreement may be amended from time to time by Synchrony Telemed, by notifying you of such amendments in writing. Such amendments shall be effective thirty-five (35) days after notice, subject to your right to terminate this Agreement as described herein. Your continued use of the Service following such thirty-five (35) days period will constitute acceptance of the modified Agreement. Accordingly, you should revisit Synchrony Telemed’s website at http://www.hubchart.io on a regular basis.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and all other provisions of this Agreement shall remain in full force and effect.
You may not assign this Agreement without the prior written consent of Synchrony Telemed. Synchrony Telemed may assign this Agreement in its sole discretion.
Synchrony Telemed’s failure to act on any breach of any provision hereof shall not be construed as a waiver of the enforcement of any such provision unless Synchrony Telemed agrees to such waiver in writing. A waiver of any part of this Agreement in one instance will not be deemed a waiver of any other part or any other instance.
20. Entire Agreement/Governing Law.
This Agreement (which may include the Business Associate Addendum), together with any separately executed written Business Associate Agreement, constitutes the entire understanding between you and Synchrony Telemed with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between you and Synchrony Telemed. The validity and effectiveness of this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws, and those of the United States of America. Any legal action or proceeding with respect to this Agreement may be brought exclusively in the federal or state courts located in or having jurisdiction over Los Angeles, California. Service of process shall be made in any manner allowed by applicable law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.