TERMS OF SERVICE (FOR NURSE USERS)
Last Revised:
March [˜ ], 2021
Welcome to the Terms of Service (these “Terms”)
for the website available at caresend.co (together with any successor website, the
“Website”) operated by or on behalf of CareSend, Inc. (“Company”,
“we” or “us”), and together with any product, service, content,
tools, features and functionality offered on or through our Website (collectively
the “Services”).
These Terms govern your access to and use
of the Services. Please read these Terms carefully, as they include important
information about your legal rights. By accessing and/or using the Services, you
are agreeing to these Terms. If you do not understand or agree to these Terms, please
do not use the Services.
For purposes of these Terms, “you”
and “your” means you as the user of the Services. If you use the Services
on behalf of a company or other entity then “you” includes you and that entity,
and you represent and warrant that (a) you are an authorized representative of
the entity with the authority to bind the entity to these Terms, and (b) you
agree to these Terms on the entity's behalf.
IN ORDER TO USE THE SERVICES, YOU MUST BE
CONTRACTED WITH ONE OF THE HEALTH CARE PROVIDERS OFFERING SERVICES THROUGH OUR
WEBSITE OR APP THROUGH THE NURSE TERMS OF ENGAGEMENT (“TERMS OF ENGAGEMENT”).
THE HEALTH CARE PROVIDER WHO ENGAGES YOU (THE “CONTRACTING HEALTH CARE
PROVIDER”) WILL BE SOLELY RESPONSIBLE FOR OVERSEEING AND SUPERVISING YOUR
PERFORMANCE OF ANY SERVICES TO PATIENT USERS OF THE SERVICES.
Please note that
Section 11 contains an arbitration clause and
class action waiver. By agreeing to these Terms, you agree (a) to resolve all
disputes with us through binding individual arbitration, which means that you waive
any right to have those disputes decided by a judge or jury, and (b) that you
waive your right to participate in class actions, class arbitrations, or
representative actions. You have the right to opt-out of arbitration as
explained in Section 11.
1.
ABOUT US AND THE SERVICES OFFERED
The Services provide an online
platform that enables you to receive booking offers from Contracting Health Care
Providers from whom patient users of the Services have received a scheduling
appointment to receive a clinical service offered by the Contracting Health
Care Provider (“Clinical Service”). The Services provide an online
platform that enables patients to schedule appointments to receive a Clinical
Service (each, a “Booking”). The Booking offers you receive may be to
provide Clinical Services on behalf of the Contracting Health Care Provider or to
provide non-clinical service(s) that are related to the Clinical Service
requested by patient (“Related Service” and also known as “Non-Covered
Services” for purposes of third party reimbursement).
We are not a medical practice and
do not engage you to provide Clinical Services or Related Services; as noted
above, you must be separately engaged by a Contracting Health Care Provider through
the Terms of Engagement in order to use the Services. We offer an online
platform for independent health care providers to make their services available
to the general public. We do not recommend or endorse any specific health care
provider or service, including the Contracting Health Care Provider. We do not
act as a “nurse registry,” as such term is defined under applicable laws, nor
do we act as an employment agency. We do not act as a “Home Health Agency” as
such term is defined under applicable laws. All health care services are
provided and directed by independent medical practices. We do not own the
Contracting Health Care Provider or any other medical practice offering Clinical
Services through the Website or App, employ or in any way supervise or control
such health care providers rendering care. The care provided by each medical practice,
including the Contracting Health Care Provider, is the sole responsibility of
such practice.
2.
Who May Use the Services
In order to use the Services, you must
reside in the United States and be licensed by the state board of nursing as a registered
nurse or licensed vocational nurse in the state where you provide services and
be authorized by the Contracting Health Care Provider to provide the Clinical Service(s)
or Related Service(s) booked by patients. You agree that your state nursing
license is active and in good standing and you have uploaded to us true and
accurate copies of your government-issued photo identification, professional
license certificate and you have no criminal convictions. You further agree
that you do not have any physical or mental conditions, including alcohol or
drug abuse, which may affect your ability to perform clinical or professional
duties. Your ongoing compliance with the foregoing
licensing requirements is a condition precedent to your use of the Services.
You shall immediately notify us at team@caresend.co if you cease to satisfy the foregoing licensing requirements and
shall suspend all use of the Services until you re-quality according to this
Section 2. You shall immediately notify us if an investigation or action is
initiated by any governmental agency, including the state board of nursing,
that may result in the restriction, revocation, suspension or other form of
adverse action against your professional license. You acknowledge and agree that we are not a
credentialing service and you consent to us making your credentials available
to health care providers who may seek to engage you and it is their sole
decision to determine whether you are qualified to provide services on their
behalf.
3.
User Accounts
3.1
Creating and Safeguarding your Account. To use the Services, you will need to create an account (“Account”).
Your Account may be activated after you participate in a video demo and videoconference
with us, and we validate your license and identification, and make such
information available to the Contracting Health Care Providers for their own
credentialing process. You agree to provide us with accurate, complete and
updated information for your Account. You are solely responsible for any
activity on your Account and for maintaining the confidentiality and security
of your password. We are not liable for any acts or omissions by you in connection
with your Account. You must immediately notify us at team@caresend.co if you
know or have any reason to suspect that your Account or password have been
stolen, misappropriated or otherwise compromised, or in case of any actual or
suspected unauthorized use of your Account. YOU UNDERSTAND AND AGREE THAT WE
HAVE THE RIGHT TO DECLINE YOUR ACCOUNT WITHOUT CAUSE OR FOR ANY REASON,
INCLUDING FAILURE TO COMPLY WITH THESE TERMS OF SERVICE.
4.1
Bookings. Upon
creating an Account, you will need to sign the terms of engagement with
Contracting Health Care Providers, pursuant to which you will be engaged to
provide Clinical Services or Related Services by each Contracting Health Care
Provider prior to accepting a Booking (the “Terms of Engagement”). Once
you have signed the Terms of Engagement with the Contracting Health Care Provider
who has scheduled the appointment for patients to receive a Clinical Service,
you may receive Booking offers from that Contracting Health Care Provider. The
Booking offer will include information regarding (a) the date, time and
location for the scheduled appointment and (b) the fee you will receive for
fulfilling the appointment and performing the Clinical Service or Related
Service (the “Nurse Fee”). The Nurse Fee may vary so please confirm the
amount based on the Booking offer details provided. All currency references
are in U.S. Dollars.
4.2
Payment. When
you accept a Booking offer, we will collect payment remittance information from
you but you will not be paid the Nurse Fee until your appointment is completed
and you have performed the Clinical Service or Related Service and submitted
the patient record. You acknowledge and agree that all information you provide
with respect to your payment information, is accurate, current and complete. Payment
will be made via Stripe. Our payment to you for the Nurse Fee is made on behalf
of the Contracting Health Care Provider. Any dispute or concern regarding the
Nurse Fee and the payment thereof will be subject to the terms of your
agreement with the Contracting Health Care Provider.
4.3
Process. With
respect to administering a Clinical Service or providing a Related Service, you
agree and acknowledge to follow the following process:
(a)
Enter into the Terms of Engagement with the Contracting
Health Care Provider who is engaging you to render the Clinical Service that is
within your scope of licensure or provide a Related Service to be specified at
the time of Booking.
(b)
Accept a Booking offer for a Clinical Service or
Related Service;
(c)
Pick up applicable pharmaceutical supplies and
equipment from Contracting Health Care Provider’s office, pharmacy or clinical
laboratory as directed by Contracting Health Care Provider, as well as any additional
consent forms / directions concerning the Clinical Service from the Contracting
Health Care Provider;
(d)
Drive or arrange for transportation (at your own
expense) to patient’s selected location;
(e)
Verify patient identification by entering into
the Services the date of birth, and obtain signed patient consent form(s) from
patient, which are made available by Contracting Health Care Provider;
(f)
Deliver / perform and record Clinical Service and
Related Service, as applicable, in patient record;
(g)
If applicable, drop off any collected specimens
at laboratory as directed by Contracting Health Care Provider;
(h)
Check out on the platform;
(i)
Receive payment for performing the Clinical
Service or Related Service.
4.4
Performance of Services. In performing your duties in fulfilling a
Booking, you shall be and shall act as an agent of the Contracting Health Care
Provider, not of the Company.
5.
YOUR RESPONSIBILITIES
5.1
Our Limited Services. The Services solely provide an online platform that enables you
to receive and accept appointments from patients requesting to receive Clinical
Services from the Contracting Health Care Provider. You shall be solely
responsible for (a) patient care services and assuring
the quality of health care and related services personally rendered, (b)
transportation to and from the Contracting Health Care Provider, pharmacy,
laboratory and/or the patient location in order to provide such services, and
(c) appropriate insurance coverage, including, e.g., automobile, personal
injury, property damage, general liability, and health care professional
liability insurance coverage. The Contracting Health Care Provider will retain
the ultimate authority over the overall policy and operation of its medical practice,
including the provision of any Clinical Services and Related Services and all
protocols and processes relating to the performance of such services.
6.
Location of Our Privacy Policy
6.1
Privacy Policy. Our
Privacy Policy describes how we handle the information you provide to us when
you use the Services, including all information you provide when registering an
Account. For an explanation of our privacy practices, please visit our Privacy
Policy located at [ ˜ ].
7.
Rights We Grant You
7.1
License Grant. Subject
to your compliance with these Terms, the Company hereby grants to you, a
personal, worldwide, royalty-free, non-assignable, non-sublicensable,
non-transferrable, and non-exclusive license to use the software provided to
you as part of the Services. This license has the sole purpose of enabling you
to use and enjoy the benefit of the Services as provided by us, in the manner
permitted by these Terms and subject to the use restrictions described below. Your access and use of the Services may be
interrupted from time to time for any of several reasons, including, without
limitation, the malfunction of equipment, periodic updating, maintenance or
repair of the Service or other actions that Company, in its sole discretion,
may elect to take.
7.2
Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or
regulations prohibit these restrictions or you have our written permission to
do so:
(a)
download, modify, copy, distribute, transmit,
display, perform, reproduce, duplicate, publish, license, create derivative
works from, or offer for sale any information contained on, or obtained from or
through, the Services;
(b)
duplicate, decompile, reverse engineer,
disassemble or decode the Services (including any underlying idea or
algorithm), or attempt to do any of the same;
(c)
remove any copyright, trademark, service mark, trade
name, slogan, logo, image, or other proprietary notation displayed
on or through the Services;
(d)
use automation software (bots), hacks,
modifications (mods) or any other unauthorized third-party software designed to
modify the Services;
(e)
exploit the Services for any commercial purpose,
including without limitation communicating or facilitating any commercial
advertisement or solicitation;
(f)
access or use the Services in any manner that
could disable, overburden, damage, disrupt or impair the Services or interfere
with any other party's access to or use of the Services or use any device,
software or routine that causes the same;
(g)
attempt to gain unauthorized access to,
interfere with, damage or disrupt the Services, accounts registered to other
users, or the computer systems or networks connected to the Services;
(h)
circumvent, remove, alter, deactivate, degrade
or thwart any technological measure or content protections of the Services;
(i)
use any robot, spider, crawlers or other
automatic device, process, software or queries that intercepts, “mines,”
scrapes or otherwise accesses the Services to monitor, extract, copy or collect
information or data from or through the Services, or engage in any manual
process to do the same;
(j)
introduce any viruses, trojan horses, worms,
logic bombs or other materials that are malicious or technologically harmful
into our systems;
(k)
use the Services for illegal, harassing,
unethical, or disruptive purposes;
(l)
violate any applicable law or regulation in
connection with your access to or use of the Services;or
(m)
access or use the Services in any way not
expressly permitted by these Terms.
8.
Ownership and Content
8.1
Ownership of the Services. The Services, including their "look and feel" (e.g.,
text, graphics, images, logos), proprietary content, information and other
materials, are protected under copyright, trademark and other intellectual
property laws. You agree that the Company and/or its licensors own all right,
title and interest in and to the Services (including any and all intellectual
property rights therein) and you agree not to take any action(s) inconsistent
with such ownership interests. We and our licensors reserve all rights in
connection with the Services and its content including, without limitation, the
exclusive right to create derivative works.
8.2
Ownership of Trademarks. The Company’s name, logo and all related names, logos, product and
service names, designs and slogans are trademarks of the Company or its
affiliates or licensors. Other names, logos, product and service names,
designs and slogans that appear on the Services are the property of their
respective owners, who may or may not be affiliated with, connected to, or
sponsored by us.
8.3
Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to
the Services (“Feedback”). You acknowledge and expressly agree that any
contribution of Feedback does not and will not give or grant you any right,
title or interest in the Services or in any such Feedback. All Feedback becomes
the sole and exclusive property of the Company, and the Company may use and
disclose Feedback in any manner and for any purpose whatsoever without further
notice or compensation to you and without retention by you of any proprietary
or other right or claim. You hereby assign to the Company any and all right, title
and interest (including, but not limited to, any patent, copyright, trade
secret, trademark, show-how, know-how, moral rights and any and all other
intellectual property right) that you may have in and to any and all Feedback.
9.
Third Party Services and Materials
9.1
Use of Third Party Materials in the Services. The Services may display, include or make available content, data,
information, applications or materials from third parties (“Third Party
Materials”) or provide links to certain third party websites. By using the
Services, you acknowledge and agree that the Company is not responsible for
examining or evaluating the content, accuracy, completeness, availability, timeliness,
validity, copyright compliance, legality, decency, quality or any other aspect
of such Third Party Materials or websites. We do not warrant or endorse and do
not assume and will not have any liability or responsibility to you or any
other person for any third-party services, Third Party Materials or third-party
websites, or for any other materials, products, or services of third parties.
Third Party Materials and links to other websites are provided solely as a
convenience to you. If you have any complaints in connection with any Third
Party Materials or third-party website, please contact such third party
directly, or contact your state Attorney General or the Federal Trade
Commission at www.ftc.gov.
10.
Disclaimers, Limitations of Liability and
Indemnification
10.1
Disclaimers. Your
access to and use of the Services are at your own risk. You understand and
agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE”
basis. Without limiting the foregoing, to the maximum extent permitted under
applicable law, the Company, its parents, affiliates, related companies,
officers, directors, employees, agents, representatives, partners and licensors
(the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER
EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. The Company Entities make no warranty or representation and
disclaim all responsibility and liability for: (a) the completeness, accuracy,
availability, timeliness, security or reliability of the Services; (b) any harm
to your computer system, loss of data, or other harm that results from your
access to or use of the Services; (c) the operation or compatibility with any
other application or any particular system or device; (d) whether the Services
will meet your requirements or be available on an uninterrupted, secure or
error-free basis; (e) the patient designated site for receiving the Clinical
Service or Related Service and (f) the conduct of any third parties, including
but not limited to Contracting Health Care Providers and patients. No advice or
information, whether oral or written, obtained from the Company Entities or
through the Services, will create any warranty or representation not expressly
made herein.
10.2
Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT
WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING
DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER
DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE
THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER
THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR
THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES
WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS
OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH
AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY
NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES
FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00),
OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS
FOR PRODUCTS AND SERVICES PURCHASED ON THE SERVICES GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF
ITS ESSENTIAL PURPOSE.
10.3
Indemnification. By
entering into these Terms and accessing or using the Services,
you agree that you shall defend, indemnify and hold the Company Entities harmless
from and against any and all claims, costs, damages, losses, liabilities and
expenses (including attorneys’ fees and costs) incurred by the Company Entities
arising out of or in connection with: (a) your performance of services
hereunder and fulfilment of appointments booked through the Services for
vaccinations administered by you, (b) your violation or breach of any term of
these Terms or any applicable law or regulation; (c) your violation of any
rights of any third party; (d) your access to or use of the Services; or (e) your
professional negligence or your professional acts or omissions.
11.1
Informal Process First. You agree that in the event of any dispute between you and the Company
Entities, you will first contact the Company and make a good faith sustained
effort to resolve the dispute before resorting to more formal means of
resolution, including without limitation, any court action.
11.2
Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining
dispute, controversy, or claim (collectively, “Claim”) relating in any
way to your use of the Company’s services and/or products, including the
Services, will be resolved by arbitration, including threshold questions of
arbitrability of the Claim. You and the Company agree that any Claim will be settled
by final and binding arbitration in Los Angeles, California, using the English
language, administered by JAMS under its Comprehensive Arbitration Rules
and Procedures (the “JAMS Rules”) then in effect (those rules are deemed
to be incorporated by reference into this section, and as of the date of these
Terms). Arbitration will be handled by a sole arbitrator in accordance with the
JAMS Rules. Judgment on the arbitration award may be entered in any court that has
jurisdiction. Any arbitration under these Terms will take place on an
individual basis – class arbitrations and class actions are not permitted. You
understand that by agreeing to these Terms, you and the Company are each
waiving the right to trial by jury or to participate in a class action or class
arbitration. Notwithstanding the foregoing, you and the Company will have
the right to bring an action in a court of proper jurisdiction for injunctive
or other equitable or conservatory relief, pending a final decision by the
arbitrator. You may instead assert your claim in “small claims” court, but only
if your claim qualifies, your claim remains in such court and your claim
remains on an individual, non-representative and non-class basis.
11.3
Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and
arbitrator fees will be in accordance with the JAMS Rules. If the value of your
claim does not exceed $10,000, the Company will pay for the reasonable filing,
administrative and arbitrator fees associated with the arbitration, unless the
arbitrator finds that either the substance of your claim or the relief sought
was frivolous or brought for an improper purpose.
11.4
Opt-Out. You have the right to opt-out and not be bound by the arbitration
provisions set forth in these Terms by sending written notice of your decision
to opt-out to team@caresend.co or to the U.S. mailing address listed in
the “How to Contact Us” section of these Terms. The notice must be sent to the
Company within thirty (30) days of your registering to use the Services or
agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in
accordance with these Terms. If you opt-out of these arbitration provisions, the
Company also will not be bound by them.
12.
Additional Provisions
12.1
Updating These Terms. We may modify these Terms from time to time in which case we will
update the “Last Revised” date at the top of these Terms. If we make changes
that are material, we will use reasonable efforts to attempt to notify you, such
as by e-mail and/or by placing a prominent notice on the first page of the Website.
However, it is your sole responsibility to review these Terms from time to time
to view any such changes. The updated Terms will be effective as of the time
of posting, or such later date as may be specified in the updated Terms. Your
continued access or use of the Services after the modifications have become
effective will be deemed your acceptance of the modified Terms.
12.2
Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses
granted by the Company will terminate automatically. Additionally, the Company
may suspend, disable, or delete your Account and/or the Services (or any part
of the foregoing) with or without notice, for any or no reason. If the Company
deletes your Account for any suspected breach of these Terms by you, you are
prohibited from re-registering for the Services under a different name. All
sections which by their nature should survive the termination of these Terms
shall continue in full force and effect subsequent to and notwithstanding any
termination of this Agreement by the Company or you. Termination will not limit
any of the Company’s other rights or remedies at law or in equity.
12.3
Non-Disparagement.
At all times, you agree not to make any statement or perform any act which in
any way would harm, disparage or injure us or the Services or be detrimental to
our relationships and dealings with other users of the Services. In no event
shall any statement or communication by you exercising your medical judgment be
considered a breach of this requirement.
12.4
Injunctive Relief.
You agree that a breach of these Terms will cause irreparable injury to the
Company for which monetary damages would not be an adequate remedy and the
Company shall be entitled to equitable relief in addition to any remedies it
may have hereunder or at law without a bond, other security or proof of
damages.
12.5
California Residents. If you are a California resident, in accordance with Cal. Civ.
Code § 1789.3, you may report
complaints to the Complaint Assistance Unit of the Division of Consumer
Services of the California Department of Consumer Affairs by contacting them in
writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by
telephone at (800) 952-5210.
12.6
Miscellaneous. If
any provision of these Terms shall be unlawful, void or for any reason
unenforceable, then that provision shall be deemed severable from these Terms
and shall not affect the validity and enforceability of any remaining
provisions. These Terms and the licenses granted hereunder may be assigned by the
Company but may not be assigned by you without the prior express written
consent of the Company. No waiver by either party of any breach or default
hereunder shall be deemed to be a waiver of any preceding or subsequent breach
or default. The section headings used herein are for reference only and shall
not be read to have any legal effect. These Terms are governed by the laws of
the State of California, without regard to conflict of laws rules, and the
proper venue for any disputes arising out of or relating to any of the same
will be the state and federal courts located in [Los Angeles, California].
12.7
How to Contact Us.
You may contact us regarding the Services or these Terms at: team@caresend.co