MOBILE THERAPY PROVIDER TERMS AND CONDITIONS OF SERVICE (Effective as of September 1, 2014):
THESE TERMS AND CONDITIONS OF SERVICE AGREEMENT (the “Agreement” or “Terms”) is made between SelfEcho, Inc. (“SelfEcho”), a Delaware Corporation and you, the treatment provider (healthcare provider). These terms govern your use of the mobiletherapy.com Website (“Website”), Mobile Therapy Software and Servers (hereinafter collectively the “Service”), your rights and obligations with respect to User Data that you or your clients place in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account by which you will access the Service, (hereinafter an “Account”) for use in connection with the Service. This Agreement may be changed by SelfEcho, Inc. effective immediately by notifying you as provided in Section 23 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service. Certain information regarding the data we collect is covered in our Privacy Note, located at http://www.mobiletherapy.com/privacy/, to which you also agree.
- DEFINITIONS FOR THE PURPOSES OF THIS AGREEMENT
- “Website” means the Websites and Service available from the domain and subdomains of mobiletherapy.com, selfecho.com and any related or successor domains from which SelfEcho may offer the Mobile Therapy Software Service;
- “Mobile Therapy Software” is the software provided to you by SelfEcho. and/or its suppliers under license in connection with the Service;
- “Servers” are the online environments that support the Service;
- “User Data” means any data that you or your Client upload or submit to the Servers, Website, or other areas of the Service, including but not limited to Protected Health Information as that term is defined below;
- “Protected Health Information” or “PHI” means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. § 160.103;
- “Intellectual Property Rights” means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law;
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996;
- Treatment provider (Provider) is a health care professional (an individual, or an organization of individuals) that provides medical, health, or mental health Service to clients or patients (Client).
- Treatment client (Client) is an individual receiving medical, health, or mental health Service from a Provider.
- THE SERVICE:
Mobile Therapy is a third-party Telehealth platform that connects Providers to Clients in order to:
- Facilitate exchange of information between end Clients and their treatment providers (Providers)
- Provide additional Service to both the Provider and the Client such as analysis and processing of the user data uploaded to the Service, note taking, and other Service related to therapy and mental health treatment.
Mobile Therapy does not provide, nor does our Service include, mental health care or professional service related to medical care. Rather, we are a technology provider that provides a platform or space in which Providers can provide these services to Clients. Providers offering services through the Service are not employees or agents of Mobile Therapy, nor are they associate with Mobile Therapy in any way.
As a Provider, you are required to obtain the clients informed consent before treatment or use of the Service. Mobile Therapy does not endorse any Providers nor any methods or actions that may be found on this Service. It is the responsibility of the Clients to verify the competency of the Provider.
- BUSINESS ASSOCIATE AGREEMENT:
By agreeing to these terms and conditions you also agree to the terms in Mobile Therapy’s Business Associate Agreement (See Exhibit A)
In order to use the Mobile Therapy Service you must comply with the Terms and Conditions of Service. Different parts of the Website may also require compliance with additional terms.
- MEDICAL ADVICE:
The Information contained on our Website or in our Service is not and should not be considered medical advice. No representation or warranty is made that any particular drug or treatment is safe, appropriate or effective, and Mobile Therapy does not endorse or advocate any treatment method.
- FEES AND BILLING
Mobile Therapy provides the Service for the fees and other charges set forth on the mobiletherapy.com website. Mobile Therapy may add new services for additional fees and charges, or prospectively amend fees and charges for existing Service. You acknowledge that it is your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Mobile Therapy continue to be valid and sufficient for such purposes. Mobile Therapy may exercise its suspension or termination rights as provided in Section 14 in the event of any payment delinquency.
- REGISTERED USER ACCOUNTS.
In order to access the Service you will be required to become a registered user of the Service by creating a Mobile Therapy account (Account). Only one person may use an Account. By creating an Account you agree to provide accurate, current and complete information about yourself as prompted by the registration form (“Registration Data”) and to use the account management tools provided to keep your Registration Data accurate, current and complete. You are responsible for safeguarding and maintaining the confidentiality of your password and you agree not to disclose your password to any third party. You will be solely responsible for any activities or actions taken under your Account, whether or not you have authorized such activities or actions. SelfEcho is not responsible for any unauthorized access to your account. You must notify us immediately if you know or suspect that any unauthorized person is accessing our Account. It is recommended you only use private computers and devices to access the Service to which you have full control. By creating an Account, you expressly consent to the use of electronic records to store information related to these Terms or your use of the Service. SelfEcho cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- PROTECTED HEALTH INFORMATION, USER DATA AND USE OF YOUR INFORMATION
- RESTRICTIONS ON CONDUCT.
The Service may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service. Any violation of these restrictions may result in immediate barring from the use of the Service and/or further actions in the sole discretion of SelfEcho, including the cooperation with the appropriate legal authorities into any investigation and prosecution of your actions. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Service:
- transmit or upload any information for which you don’t have the right to transmit, publish, copy, upload, or disseminate;
- upload, post, email or otherwise transmit any Content that infringes on the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);
- use the Service to collect or store personal data about other users without their express permission;
- upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, “pyramid schemes” or any other form of solicitation, as well as viruses or other computer code that may interrupt, destroy, limit the functionality of the Service, or interfere with the access of any other user to the Service;
- circumvent, disable, or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content;
- use any meta tags or other hidden text or metadata utilizing a Mobile Therapy name, trademark, URL or product name;
- attempt to probe, scan or test the vulnerability of any Mobile Therapy system or network or breach or impair or circumvent any security or authentication measures protecting the Service;
- attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of any software or any proprietary algorithm used to provide the Service; or
- encourage or instruct any other person or entity to do any of the foregoing.
- INTERRUPTION OF SERVICE
SelfEcho may on occasion need to interrupt the Service with or without prior notice to protect the integrity or functionality of the Service. You agree that SelfEcho will not be liable for any interruption of the Service (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.
- YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR DATA
- SELFECHO’S INTELLECTUAL PROPERTY RIGHTS AND LIMITED LICENSE GRANTED TO YOU
SelfEcho owns Intellectual Property Rights in and to the Service including the Mobile Therapy Software, the Websites and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, question language, and trade dress (collectively, the “Mobile Therapy Marks”). You understand that such Intellectual Property Rights are apart from any rights you may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that SelfEcho and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Mobile Therapy Marks.
SelfEcho hereby grants you a non-exclusive, non-transferable, non-licensable, limited, revocable license to access and use the Service as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by SelfEcho to use or access the Mobile Therapy Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the Mobile Therapy Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, (iv) alter or modify the Mobile Therapy Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Mobile Therapy Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Mobile Therapy Software.
- TERMINATION; CANCELLATION.
Mobile Therapy is continually evolving and innovating. We reserve the right to change the Website, the Content we offer, or our Service, and the products or Service you may access at any time without notice. We may discontinue offering our Service or Website and we may suspend or terminate your right to use our Service or Website at any time, in the event that you breach these Terms, for any reason, or for no reason at all, in our sole discretion, and without prior notice to you. After such termination, Mobile Therapy will have no further obligation to provide the Service, except to the extent we are obligated to provide you access to your Client health records or in the event that you are required to provide the Service in conjunction with continuing care under your applicable legal, ethical and professional obligations to your Client. Upon termination of your right to use our Service or Website or our termination of the Service or Website, all licenses and other rights granted to you by these Terms will immediately terminate. You may terminate your Account at any time and for any reason by sending SelfEcho notice in writing or through customer service. Upon any termination by you, your Account will no longer be accessible. Upon termination, if you so request, SelfEcho shall send you an encrypted file with your client’s data. Mobile Therapy will handle any cancellation request within 30 days of receipt of such a request. Your obligations under this agreement shall survive and extend past any termination or suspension of our Service to you.
- THIRD-PARTY WEBSITES; ADVERTISEMENTS.
Links to third-party Websites or resources and advertisements from third parties maybe available and visible in our Service or on our Website. SelfEcho is not responsible or liable for the availability or accuracy of, and SelfEcho does not endorse, sponsor, or recommend such websites, resources, or third-party advertisements or the content, products, or service on or available through them. We do not endorse and are not responsible for any of the content, products, or service provided or advertised by others. YOUR USE OF THE WEBSITES OR RESOURCES OF THIRD PARTIES IS AT YOUR OWN RISK. SELFECHO AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY OF YOUR LOSSES ARISING OUT OF OR RELATING TO THE WEBSITES OR RESOURCES OF THIRD PARTIES.
- DISCLAIMER OF WARRANTIES.
Your use of the Service, Website and Content is at your sole discretion and risk. The Service and Content, and all materials, information, products and Service included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. SELFECHO AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE AND CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE. SELFECHO AND ITS LICENSORS AND AFFILIATES MAKE NO WARRANTY THAT THE CONTENT YOU ACCESS ON OUR WEBSITE OR USING OUR SERVICE SATISFIES THE LAWS AND REGULATIONS REQUIRING THE DISCLOSURE OF INFORMATION FOR PRESCRIPTION DRUGS. IN ADDITION, SELFECHO AND ITS LICENSORS AND AFFILIATES DISCLAIM ANY WARRANTIES REGARDING SECURITY, ACCURACY, RELIABILITY TIMELINESS AND PERFORMANCE OF THE SERVICE OR THAT THE SERVICE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION PROVIDED TO YOU BY SELFECHO WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, THE ACCURACY OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION PROVIDED THROUGH THE SERVICE OR THEIR APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES. OUR SERVICE AND WEBSITE CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES AND SELFECHO AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICE CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You agree to forever indemnify, defend, and hold harmless SelfEcho, SelfEcho’s licensors and affiliates and our respective directors, officers, employees, contractors, agents, and representatives, from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or relating to any of the following matters:
- your access to or use of the Service, the Website, or the Content;
- your violation of any of the provisions of these Terms of Service;
- any activity related to your Account by you or any other person accessing the Website or Service through your account, including, without limitation, negligent or wrongful conduct; or
- your violation of any third party right, including ,without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
SelfEcho reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL SELFECHO OR SELFECHO’S LICENSORS OR AFFILIATES BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE, THE WEBSITE, OR THE CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SELFECHO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IF YOU ARE DISSATISFIED WITH THE SERVICE, THE WEBSITE OR THE CONTENT, OR THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE. NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF OUR TREATMENT PROVIDERS OR OTHER LICENSED HEALTHCARE PROFESSIONALS ARISING FROM OR RELATED TO MEDICAL OR MENTAL HEALTH ADVICE, DIAGNOSIS, OR TREATMENT THEY PROVIDE TO YOU, EXCEPT AS PROVIDED UNDER APPLICABLE STATE LAWS. IN MANY JURISDICTIONS, PROVIDERS ARE REQUIRED TO REPORT CONFIDENTIAL INFORMATION IF THEY HAVE REASON TO BELIEVE THAT A PATIENT IS LIKELY TO HARM OTHERS OR HIMSELF/HERSELF. IN NO EVENT SHALL SELFECHO BE LIABLE FOR THE DISCLOSURE OF, OR FAILURE TO DISCLOSE, CONFIDENTIAL INFORMATION BY A PROVIDER. SELFECHO IS NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF A TREATMENT PROVIDER PROVIDING MENTAL HEALTH SERVICE. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF SELFECHO OR SELFECHO’S LICENSORS OR AFFILIATES TO YOU, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED $1,000. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICE, THE WEBSITE OR THE CONTENT OR OUR RELATIONSHIP WITH YOU, REGARDLESS OF THEORY, MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION OR BE FOREVER BARRED. SOME JURISDICTIONS DO NOT PERMIT US TO LIMIT OUR LIABILITY IN THESE WAYS, SO IT IS POSSIBLE THAT THESE LIMITATIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- ERRORS AND INACCURACIES.
The information on the Website including, and without limitation, information regarding pricing, may contain typographical errors or other errors or inaccuracies, and may not be complete or current. SelfEcho reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. SelfEcho does not guarantee that any such errors, inaccuracies, or omissions will be corrected. SelfEcho reserves the right to refuse to fill any orders or provide Service that are based on inaccurate or erroneous information on the Website, including incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.
- GENERAL TERMS.
These Terms of Service and the Business Associate Agreement, constitute the entire agreement between you and us relating to our Service, the Website, and the Content, replacing any prior or contemporaneous agreements, whether written or oral, unless you have signed a separate written agreement with us relating to our Service, the Website, or the Content. If there is any conflict between the Terms and a separate signed written agreement between you and us relating to our Service, the Website, or the Content, the signed written agreement will control. Our licensors may be entitled to enforce this agreement as third-party beneficiaries. There are no other third-party beneficiaries to this agreement. The failure by you or us to enforce any provision of the Terms will not constitute a waiver. If any court of law, having the jurisdiction to decide the matter, rules that any provision of the Terms is invalid or unenforceable, then the invalid or unenforceable provision shall be removed from the Terms or reformed by the court and given effect so as to best accomplish the essential purpose of the invalid or unenforceable provision, and all of the other provisions of the Terms shall continue to be valid and enforceable. Nothing contained in these Terms of Service shall limit the ability of a party to seek an injunction or other equitable relief without posting any bond. The titles of the Sections of the Terms are for convenience only and shall have no legal or contractual effect.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00 USD, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will initiate such arbitration through JAMS, a private alternative dispute (ADR) provider. The parties must comply with the following rules:
- The arbitrator shall be selected from JAMS and the arbitration shall be conducted in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures, except as otherwise specified below;
- the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;
- the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
- any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Any dispute, controversy, or disagreement arising out of or relating to these Terms, the breach thereof, or the subject matter thereof, where the total amount of the award sought is $10,000.00 USD or greater, shall be settled exclusively by binding arbitration. The arbitrator shall be selected from JAMS and the arbitration shall be conducted in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures. The arbitration shall be held in Travis County, Texas, unless the parties mutually agree to have such proceeding in some other locale. To the extent of the subject matter of the arbitration, the arbitration shall be binding not only on all parties to these Terms, but on any other entity controlled by, in control of or under common control with the party to the extent that such affiliate joins in the arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- GOVERNING LAW AND FORUM FOR DISPUTES.
THESE TERMS OF SERVICE AND OUR RELATIONSHIP WITH YOU SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING ITS CHOICE OF LAWS RULES. YOU AND SELFECHO EACH IRREVOCABLY AGREES THAT THE EXCLUSIVE VENUE FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR OUR RELATIONSHIP WITH YOU, REGARDLESS OF THEORY, SHALL BE THE U.S. DISTRICT COURT FOR SANTA BARBARA COUNTY, CALIFORNIA. YOU AND SELFECHO EACH IRREVOCABLY CONSENTS TO THE PERSONAL JURISDICTION OF THESE COURTS AND WAIVES ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION BY THESE COURTS AND TO THIS VENUE. HOWEVER, YOU AND SELFECHO AGREE THAT SELFECHO MAY COMMENCE AND MAINTAIN AN ACTION OR PROCEEDING SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF IN ANY COURT OF COMPETENT JURISDICTION.
- CHANGES TO THESE TERMS.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our Website. Your continued use of our Service or the Website will constitute your agreement to the changes we have made. The last date these Terms were revised is set forth at the end of this document.
24: CONTACT US:
Last Update: November 25, 2014