These Terms may be modified or expanded from time to time. The most recent revisions to these Terms will be communicated on or through the VideoMedicine Web site www.VideoMedicine.com. Each time You use VideoMedicine, You should check the Web site to see whether and how the Terms have been changed. Your continued access to or use of VideoMedicine will constitute Your acceptance of any changes or revisions to these Terms. The Terms of this Agremeent pertain solely to services provided by VideoMedicine to Health Professionals providing healthcare services to patients in the United States, Italy, or China. In any other setting, this Agreement is null and void.
Through VideoMedicine, as described more fully in these Terms, a Health Professional can provide either educational or clinical services or both. Your failure to comply with these Terms, however, whether listed below or as communicated through the VideoMedicine Web site, may result in the suspension or termination of Your access to VideoMedicine without notice, in addition to any other remedies that may be available to Us at law or in equity. You may terminate Your relationship with VideoMedicine at will, on notice to Us, but upon any such termination, You are solely responsible for meeting all legal duties You may owe to Your Consumers or Patients.
VideoMedicine offers Health Professionals a mechanism to provide either educational or clinical services, or both, outlined specifically in section 3 and section 4 below.
“Affiliate” means all agents, servants, employees, parents, subsidiaries, siblings, successors, heirs, or assigns of VideoMedicine or of Salus Telehealth, Inc., and each of their respective officers, directors, members, employees, agents, servants, or representatives, and their respective successors and assigns.
“Consumers” are those individuals who elect to communicate with Health Professionals on VideoMedicine.
“Health Professionals” are licensed physicians, psychologists, mental health counselors, diabetes educators, nurse practitioners, chiropractors, naturopaths, and nutritionists, who communicate with Consumers using VideoMedicine and who arrange to be listed here.
“Office Hours” are times You make available for information sessions with Consumers or for clinical sessions with Patients.
“Patients” are those Consumers who have agreed to accept Your services in making diagnoses or in recommending treatment or both for them, including, where You deem it appropriate and lawful, and where it is within the scope of Your practice, the prescribing of medications exclusive of controlled substances.
“Standard Rate:” The rate You will charge Consumers or Patients for Your time communicating with them through VideoMedicine, stated per session. All rates and dollar values under this document shall be valued using United States Dollar (USD) currency.
“We” or “Our” or “Us” refers to VideoMedicine or to Salus Telehealth, Inc.
“You” or “Your” or “Yourself” refers to those physicians or psychologists who have installed, downloaded, registered with, or used VideoMedicine.
A. VIDEOMEDICINE DOES NOT PROVIDE LEGAL ADVICE
VideoMedicine is neither a lawyer nor a law firm. It does not practice law, nor seek to practice law. In providing these Terms to Health Professionals, VideoMedicine does not enter into an attorney-client relationship with Health Professionals, or with anyone else, nor does it offer anyone legal advice. Health Professionals are advised to confer with competent counsel for legal advice concerning their use of VideoMedicine’s services. In particular, that We make VideoMedicine available to You does not mean that We assert that You may lawfully use it in Your or any jurisdiction for any purpose. Your choice to access VideoMedicine is at Your own initiative and Your own risk and You are responsible for compliance with all applicable laws. VideoMedicine does not provide assistance for, nor is it obligated to assist, Health Professionals seeking visas or other immigration or travel documents.
B. VIDEOMEDICINE DOES NOT PROVIDE MEDICAL ADVICE
VideoMedicine is neither a physician nor a medical practice. It does not practice medicine, nor seek to practice medicine. Similarly, VideoMedicine is neither a psychologist, nor any other kind of mental health or behavioral Health Professional, nor a mental health practice. In providing Terms to Health Professionals and to Patients, VideoMedicine does not enter into a physician-patient relationship with anyone, nor a psychologist-patient or therapist-patient relationship with anyone, nor does it offer medical advice or mental health or behavioral health advice to anyone.
VideoMedicine is not in any way a partner of any Health Professional, nor a member of any Health Professional’s group, nor in practice nor in business with any Health Professional. VideoMedicine has no power to hire Health Professionals. You agree that You are not, under this Agreement, an employee or agent of VideoMedicine. VideoMedicine may terminate any agreement it has with any Health Professional, but otherwise has no authority to discipline, fire
or terminate Health Professionals. In particular, VideoMedicine has no authority to influence, much less control, how Health Professionals practice, nor does it seek to acquire any such authority. On the contrary, VideoMedicine recognizes, and by installing, downloading, registering with, or in any way using VideoMedicine, You also recognize, that Health Professionals are professionals authorized and obligated to exercise their own independent professional judgment in the education of Consumers and in the care of Patients, and VideoMedicine has no authority, nor any obligation, nor does it seek any such authority or obligation, to play any role in making any such judgments. VideoMedicine does not provide insurance or insurance advice.
3. EDUCATIONAL PURPOSE
The educational purpose of VideoMedicine is to provide an online tool for Health Professionals to meet and provide Consumers with information about health and healthcare. VideoMedicine does this by licensing its online platform to Health Professionals who conduct scheduled real-time online information sessions with Consumers who have signed up for the service. We do not provide this service as a means for Us to practice medicine or for You to care for Patients. Rather, we provide it to enable You to educate Consumers about matters falling within Your expertise.
Through VideoMedicine, Consumers will be able to ask questions and otherwise seek information from You as a Health Professional. Communications between You and the Consumer using VideoMedicine for educational purposes are not and are not intended to be a substitute for professional medical or mental health advice, diagnosis, or treatment. If You decide to use VideoMedicine to educate Consumers, You agree that You will advise the Consumer utilizing VideoMedicine for educational purposes to seek the advice of his or her own physician or psychologist or other qualified health care provider regarding any questions the Consumer may have with respect to a medical condition or health problem. You also agree that You will advise the Consumer never to disregard professional medical or mental or behavioral health advice or delay in seeking it because of information You have provided through VideoMedicine. You also agree that You will advise the Consumer that reliance on any information You provide through VideoMedicine is solely at the Consumer’s own risk.
EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE INFORMATION PROVIDED BY YOU THROUGH VIDEOMEDICINE IS FOR EDUCATIONAL PURPOSES ONLY, AND IS IN NO WAY INTENDED TO DIAGNOSE, CURE, TREAT OR MITIGATE DISEASE OR INJURY OR ANY MEDICAL OR HEALTH CONDITION, OR TO CONSTITUTE MEDICAL ADVICE OF ANY KIND.
VIDEOMEDICINE IS NOT INTENDED FOR USE IN EMERGENCIES. IF YOU THINK A CONSUMER WITH WHOM YOU ARE COMMUNICATING THROUGH VIDEOMEDICINE MAY HAVE A MEDICAL EMERGENCY, YOU AGREE THAT YOU WILL INSTRUCT THAT CONSUMER TO CALL HIS OR HER HEALTH PROFESSIONAL OR THE APPROPRIATE EMERGENCY CONTACT NUMBER IN YOUR LOCATION.
4. CLINICAL PURPOSE
The clinical purpose of VideoMedicine is to provide a method for a Health Professional in appropriate circumstances to provide Patients with diagnoses or treatments or both. Clinical use of VideoMedicine may not be lawful in every jurisdiction or in every clinical circumstance. Clinical use of VideoMedicine may not be professionally appropriate in many clinical situations. If You decide to offer clinical services to Patients through VideoMedicine, You agree that it is Your responsibility to determine whether 1) The nature of a given Patient’s problem is such that it is professionally appropriate to clinically assist the Patient with that problem through VideoMedicine; and 2) You may lawfully diagnose or treat any given Patient seeking clinical services through VideoMedicine.
YOUR DECISION TO OFFER DIAGNOSTIC OR THERAPEUTIC SERVICES OR BOTH THROUGH VIDEOMEDICINE IS, SUBJECT TO THE INFORMED CONSENT OF YOUR PATIENT, SOLELY YOURS TO MAKE. VIDEOMEDICINE IS NOT QUALIFIED TO NOR DOES IT ATTEMPT TO MAKE SUCH DECISIONS FOR YOU OR FOR ANYONE ELSE. VIDEOMEDICINE HAS NO PATIENTS OF ITS OWN AND PLAYS NO ROLE IN THE MANAGEMENT OF ANY PATIENT, NOR DOES IT SEEK TO NOR IS IT QUALIFIED TO. THE LAWS AND REGULATIONS FOR OBTAINING YOUR PATIENT’S INFORMED CONSENT VARY BY JURISDICTION. FROM EACH PATIENT TO WHOM YOU PROVIDE SERVICES, YOU ARE RESPONSIBLE FOR OBTAINING INFORMED CONSENT UNDER THE RELEVANT LAWS OF YOUR JURISDICTION. VIDEOMEDICINE IS NOT.
There are two circumstances in which, assuming there is no legal impediment to your doing so, and assuming the nature of the Patient’s problem is such that utilizing VideoMedicine is clinically appropriate, You may be able to provide professional medical advice, diagnoses, or treatment, including in proper cases prescriptions for medications other than controlled substances, through VideoMedicine.
A. In those cases in which the Consumer in question is Your existing patient in Your medical or mental health practice, You may provide diagnoses or treatment advice or both, and, if clinically appropriate and within Your scope of practice, You may prescribe medications other than controlled substances.
B. You have established a physician-patient relationship or psychologist-patient relationship with the Consumer. You agree that it is Your responsibility to determine whether, under relevant law, You may perform clinical services for Patients through VideoMedicine. VideoMedicine bears no such responsibility. Before providing diagnostic or therapeutic services to Patients in any jurisdiction through VideoMedicine, Health Professionals are advised to confer with competent counsel to determine and comply with currently applicable legal requirements.
5. HEALTH PROFESSIONAL CODE OF CONDUCT
In using VideoMedicine, whether for educational or for clinical purposes, You agree to comply at all times with the following code of conduct. The following does list does not constitute evidence of an employment agreement.
* You must use an iPhone/iPad/Android Phone/Android Tablet/Webcam with a high quality Internet connection, namely Wifi or at a minimum 4G/LTE Cellular connection, for conducting educational sessions with Consumers or to diagnose or treat Patients. You are responsible for ensuring that Your Internet connectivity meets these specifications prior to using VideoMedicine services.
* You must refrain from any conduct that in Your relevant jurisdiction is deemed to be unprofessional.
* You are responsible for record-keeping, including charting of clinical services.
* You must conduct all sessions in a quiet and private environment.
* You must act in a respectful and professional manner.
* You must be dressed professionally.
* You must identify Yourself, and require the Consumer or Patient to identify himself or herself and to state his or her location.
* You must require the Consumer or Patient to state his or her age.
* You must require the Consumer or Patient to identify anyone else who may be present in the room where he or she is located.
* Although You are at liberty to change Your Standard Rate at any time, once You establish Your Standard Rate You may not charge different Patients or Consumers different rates until such time as You revise Your Standard Rate again.
* You must provide Consumers or Patients with as much information as necessary to comply with all legal requirements pertinent to informed consent in the relevant jurisdiction(s), and document having done so.
* You must be available to the Consumer or Patient for the entire length of the purchased session.
* If You must cancel or are unable to attend an appointment at any time before the start of a given session, You must give the Consumer or Patient options to reschedule with You.
* If You or the Consumer or Patient has an Internet or power failure, You must either reschedule or wait for up to 5 minutes for the Consumer or Patient to call back.
* YOU MUST GIVE CONSUMERS AND PATIENTS AT LEAST 10 MINUTES’ NOTICE IF YOU CANNOT MAKE A SCHEDULED APPOINTMENT.
* If You are 10 minutes late, You may not charge the Consumer or Patient.
* If the Consumer or Patient cancels more than 24 hours before the appointment, You may not charge the Consumer or Patient. If the Consumer or Patient cancels within 24 hours of the appointment, You may charge at Your Standard Rate for the cancelled appointment.
* If the Consumer or Patient is late, but the session begins within 5 minutes of the scheduled appointment time, and there is time remaining, You must fill the rest of the scheduled appointment time with the Consumer or Patient.
* You must identify and comply at all times with all applicable laws and regulations.
* You may not rely on VideoMedicine to identify any applicable laws or regulations, nor rely on VideoMedicine to determine what you must do to comply with any of them.
* You agree to use VideoMedicine for lawful purposes only and You acknowledge that Your failure to do so may subject You to civil or criminal liability or both and to termination of Your privilege to utilize VideoMedicine.
6. YOUR PROFILE PAGE
You must establish a profile page on VideoMedicine containing information about You and Your services, including Your Office Hours, as well as biographical information about Yourself. VideoMedicine is not responsible for, and neither controls nor attempts to control, what You represent about Yourself on Your profile page. You agree that You are responsible for the accuracy of all information You post to Your profile page. You acknowledge that Consumers and Patients will rely upon that information. You agree that You will promptly update Your profile and Office Hours as appropriate with any material changes to Your information or schedule.
Pursuant to standardized templates of the VideoMedicine Website, and for stylistic reasons only, VideoMedicine reserves the right to alter the look and feel of Your profile from time to time, but not its text. Stylistic modifications notwithstanding, You remain responsible for the accuracy of information You present about Yourself on Your profile page. VideoMedicine is not responsible for any damages stemming from misrepresentations You make on Your profile page.
To use VideoMedicine, You will be required to register and set up an account with Us. To do so, You will be provided, or required to choose, a username, a password, and/or other registration information. You agree and represent that all information You provide will be accurate and up-to-date. You acknowledge that VideoMedicine will rely upon Your representations. You may not impersonate, imitate, or pretend to be another person when registering and/or setting up an account on VideoMedicine, nor knowingly allow another person to impersonate, imitate, or pretend to be You. If because You have posted any inaccurate information or any allegedly inaccurate information any claim, demand, damages, or suit is brought against VideoMedicine or any of its Affiliates, You agree to indemnify them all and to hold them harmless. If any of the information You provide when You register changes, You must update it with reasonable promptness by using the appropriate update mechanism on www.VideoMedicine.com.
You are solely responsible for maintaining the confidentiality of Your username and password. You may not authorize others to use Your username or password, or transfer or assign Your username or password to anyone else without Our written approval. Any attempt to do so will be null and void, and grounds for Our immediate termination of Your VideoMedicine account. You are also solely responsible for all usage or activity on Your account including, but not limited to, use of the account by any person who uses Your username or password, with or without authorization, or who has access to any mobile or other device on which Your account resides or is accessible.
If You have reason to believe that Your account is no longer secure, You must promptly change Your username and password, or immediately close Your account. If You believe there may have been a breach of Consumer or Patient information protected by law, You must provide to Consumers, Patients, the proper governmental authorities or agencies located in the relevant jurisdictions, and/or where necessary the media any breach notification information required by law. You acknowledge that You are responsible to determine what if any such notification may be required in any given instance and are liable for any omissions or failures to notify the proper individuals or authorities. You must also immediately notify VideoMedicine of Your concerns
about the security of Your account, of the basis of Your concerns, and of the steps You have taken and/or plan to take to deal with Your concerns.
8. CHARGES AND PAYMENTS
You will set Your own Standard Rate for each educational or clinical session. Consumers or Patients will pay Your fee times a multiplier of 1.333 to generate revenue sufficient for VideoMedicine’s 25% communications charge. This charge may be waived in certain situations. Unless otherwise agreed, VideoMedicine’s payment to You does not include or pay for any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). Should any such Taxes be applicable to any of Your activities on VideoMedicine, it is Your responsibility to pay them. You may not rely on VideoMedicine to advise You about the existence or nature of any such Taxes, nor to advise You on how to comply with them, nor to collect them for You, nor to account for them for You.
We reserve the right to change the amount of, or basis for determining, any charges payable by You to use VideoMedicine, and to institute new charges.
9. INTELLECTUAL PROPERTY
All graphics, text, photographs, images, video, audio, and other material supplied by or through VideoMedicine are protected by federal, state, and foreign copyright, trademark, and other intellectual property laws. We and our licensors grant to You a limited, non-exclusive, right and license to use the foregoing, solely as described on www.VideoMedicine.com, as limited by these Terms, provided that You keep intact any and all copyright and other proprietary notices.
VideoMedicine also contains other graphics, text, photographs, images, video, audio, software, code, and other material that is provided by Us or by Our licensors that may not be clearly identified as, or intended for, Your use, including without limitation the organization, design, compilation, and “look and feel” of VideoMedicine (collectively, “Content”). Such Content is protected by federal, state, and foreign copyright, trademark and other intellectual property laws, and is the property of VideoMedicine or of Our licensors. The copying, reproduction, publication, display, rearrangement, redistribution, modification, revision, alteration, cropping, re-sizing, reverse engineering, movement, removal, deletion, or other use or change by You, directly or indirectly, of any such Content is strictly prohibited. Without limiting the foregoing, You may not in any way make commercial or other unauthorized use, by publication, re-transmission, distribution, performance, caching, aggregation or otherwise, of material obtained through VideoMedicine without Our prior written consent.
You agree not to disrupt, overwhelm, attack, modify, reverse engineer or interfere with VideoMedicine or its associated software, hardware and/or servers in any way, and You agree not to impede or interfere with others’ use of VideoMedicine. You agree not to attempt to gain unauthorized access to VideoMedicine servers by any means.
You also acknowledge that We have not reviewed and do not endorse the content or privacy practices of any sites or services (including other applications) linked to from VideoMedicine and
are not responsible for the content or actions or omissions of any other sites, services, or applications linked to from VideoMedicine. Your linking to any service or site is at Your sole risk.
You agree to indemnify, defend, and hold harmless VideoMedicine and its Affiliates from and against any and all suits, claims and liabilities (including reasonable attorney’s fees) that may arise from Your postings, from statements You make or images You post on Your VideoMedicine profile page, from Your services to or communications with Consumers or Patients, from Your unauthorized use of material obtained through VideoMedicine, from Your failure to notify proper authorities in the event of a data breach, from Your breach of these Terms, or from any other acts or omissions related to Your use of VideoMedicine.
11. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT YOU ARE USING VIDEOMEDICINE AT YOUR OWN RISK. VIDEOMEDICINE IS PROVIDED TO YOU “AS IS” AND WE AND OUR AFFILIATES HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTEE, OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY VIDEOMEDICINE. WE DO NOT REPRESENT OR WARRANT THAT ACCESS TO VIDEOMEDICINE WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES, WORMS, TROJAN HORSES, OR OTHER MALWARE WILL BE TRANSMITTED ON OR THROUGH VIDEOMEDICINE. ACCORDINGLY, VIDEOMEDICINE ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF VIDEOMEDICINE.
NEITHER VIDEOMEDICINE NOR ITS AFFILIATES SHALL BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (COLLECTIVELY, “DAMAGES”) ALLEGEDLY SUSTAINED OR ARISING OUT OF THESE TERMS, THE PROVIDING OF VIDEOMEDICINE SERVICES OR PRODUCTS HEREUNDER, THE SALE OR PURCHASE OF ANY SERVICES, YOUR ACCESS TO OR INABILITY TO ACCESS VIDEOMEDICINE, INCLUDING DAMAGES FOR VIRUSES, WORMS, TROJAN HORSES, OR OTHER MALWARE ALLEGED TO HAVE BEEN OBTAINED FROM OR THROUGH VIDEOMEDICINE, YOUR USE OF OR RELIANCE ON VIDEOMEDICINE OR ANY OF THE INFORMATION OR MATERIALS AVAILABLE ON VIDEOMEDICINE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
YOU HEREBY AGREE TO RELEASE VIDEOMEDICINE AND ITS AFFILIATES FROM SUITS, CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (COLLECTIVELY, “CLAIMS”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF VIDEOMEDICINE.
You agree that, for all purposes, these Terms shall be governed and construed in accordance with the laws of the State of Georgia in the United States without application of its conflict of laws principles. The parties irrevocably consent to the non-exclusive personal jurisdiction of the federal and state courts located in Georgia.
13. PRIVACY AND SECURITY
VideoMedicine does not ordinarily collect information pertinent to the services You provide, either educational information to Consumers or clinical services to Patients. Other than information needed for administration of Our service, VideoMedicine does not seek to collect individually identifiable health information.
With the permission of Consumers or Patients, however, and only with such permission, VideoMedicine will store protected health information (“PHI”) as defined at 45 C.F.R. § 160.103. Consumers and Patients have the option to upload or not to upload PHI, but if they do, they will have access to their own PHI. Consumers and patients, at their option, may elect to make their PHI available to You as well. No PHI is required to use VideoMedicine. We also offer an optional anonymous mode to further protect Patient identity.
PHI provided to VideoMedicine and transmitted between or among mobile devices, the VideoMedicine website, and its servers is encrypted. The passwords that allow access to the VideoMedicine App and website, which may contain PHI, are also encrypted. The VideoMedicine server that PHI may be stored on is protected by a firewall. Human access is limited to that access needed to maintain the server, and excludes access to PHI. VideoMedicine servers require secure shell certificates for access. The servers have all ports closed (deny-all mode) except for a few that remain open because they are vital for VideoMedicine to operate. These are secured with authentication (login/password) and encryption (Hypertext Transfer Protocol Secure/ Secure Socket Layer (“HTTPS/SSL”) traffic). VideoMedicine does its best to reasonably secure all PHI it is sent. In the event of a hacker attack, however, it is always possible, despite deployment of reasonable safeguards, that PHI may be exposed. Consumers and Patients accept this risk of unauthorized PHI use or disclosure in order to use VideoMedicine.
With respect to services You provide, You are responsible for record-keeping, including charting of clinical services.
VideoMedicine may automatically collect information about the mobile or other device You use to access VideoMedicine, including, for example, the make and model of Your device, and (if applicable) the type of browser software You use, the operating system You are running, and Your Internet Protocol address. In addition, Your location may be collected and stored via the functionality of Your mobile or other device and, if so, VideoMedicine may store and have access to such information. In addition, We reserve the right to use the information We collect about Your mobile or other device (including its location), which may at times be able to identify You, for any lawful business purpose, including without limitation to help identify problems with our servers, to gather broad demographic information, and to otherwise administer VideoMedicine.
We allow access to Our database by third parties that provide Us with services, such as technical maintenance, but only for the purpose of and to the extent necessary to provide those services. While We will seek to require such third parties to follow appropriate privacy policies and will not authorize them to use this information except for the express purpose for which it is provided, VideoMedicine does not bear any responsibility for any actions or policies of third parties. We may also provide access to Our database in order to cooperate with official investigations or legal proceedings, including, for example, responding to subpoenas, search warrants, court orders, or other legal process.
We make reasonable efforts to monitor VideoMedicine servers for any infiltration or attacks. Some attacks are easier to identify than others. Distributed denial-of-service (“DDos”) attacks, or Brute-force attacks, for example, are much easier to identify than attacks in which someone mimics a user and steals a username and password. Consumers or Patients electing to store PHI on VideoMedicine accept responsibility for securing their usernames and passwords. Should We become aware of a compromise of PHI, We shall proceed according to the Breach Notification provisions, Section 6 of the Business Associate Addendum below.
A. VideoMedicine and Children.
VideoMedicine may be used in the education or care, or both, of children, subject to these restrictions:
1. All Children under age 18
If You wish to communicate with children under age 18, whether for educational or clinical purposes, You must conform to all legal requirements associated with such communication, including without limitation obtaining the informed consent of their parents or guardians, where required, in writing, and maintaining a record of that consent. You agree to make the record of that consent available to Us on request. The laws and regulations on establishing the consent of minors vary by jurisdiction. You acknowledge that the identification of and adherence to all laws applicable to any communications between Yourself and any person under 18 is solely your responsibility, and that VideoMedicine cannot and does not provide any advice on any such
matters, nor can it be held liable for Your failure to meet this responsibility. Any requirements included in the section below are in addition to, rather than a substitute for, any applicable laws and regulations on caring for children in Your jurisdiction.
2. Children under age 13
If You wish to educate a Consumer parent or guardian about his or her child under age 13, and You or the Consumer, or both, wish the child to be present for the educational session, You must, at the time and for the duration of Your communication with or in the presence of the child, require and document the physical presence of the parent or guardian with that child. If You wish to diagnose or treat a child under 13, You must, at the time and for the duration of Your communication with the child, require and document the physical presence of the parent or guardian with the child. Under either circumstance, You must require the parent or guardian to identify himself or herself as such. You must obtain and document the informed consent of the parent or legal guardian to Your services.
We do not collect individually identifiable information from any person we actually know is a child under the age of 13.
3. Children 13-18 years of age
Children 13 to 18: If You wish to educate a Consumer parent or guardian about his or her child aged 13-18, and You or the Consumer wish the child to be present for the educational session, You must, at the time and for the duration of Your communication with or in the presence of the child, require the physical presence of the parent, other health professional, or guardian with the child. You must require the parent or guardian of the child to identify himself or herself as such. You must obtain and document the informed consent of the parent, health professional, caretaker, or legal guardian to Your services.
If You wish to diagnose or treat a child aged 13 to 18, except where under applicable law parental consent is not required, You must, at the time and for the duration of Your communication with or in the presence of the child, require the physical presence of the parent or guardian with the child. You must require the child’s parent or guardian to identify himself or herself as such. You must obtain and document the informed consent of the parent or guardian to Your services.
In certain circumstances determined by law, a child aged 13-18 is himself or herself deemed capable of granting informed consent, independent of a parent or guardian. You are responsible for determining whether those circumstances apply to the case of any given child aged 13-18. We recommend that You seek the advice of counsel in making this determination; in any event, You may not rely upon VideoMedicine to make such a determination for You. Where the child Patient is deemed legally capable of granting informed consent, the consent of a parent or guardian is not required, nor is the presence of a parent or guardian required during the communication between You and Your child Patient. Even in these circumstances, however, You must still obtain and document the consent of the 13-18 year old child Patient.
B. INFORMATION SECURITY AND NOTIFICATION
Because no data transmission is completely secure, We cannot guarantee the security of the information You send to us or the security of Our servers or databases. By using VideoMedicine You agree to assume all risk in connection with the information sent to Us or collected by Us when You use VideoMedicine. In the unlikely event that We believe that the security of Your information in our possession or control may have been compromised, We may seek to notify You in writing through VideoMedicine or otherwise via Your mobile or other device.
A. No Export: Neither party shall export, directly or indirectly, any technical data acquired from the other pursuant to these Terms or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
B. Syntax: As used in these Terms, the masculine shall include the feminine and the neuter. The singular shall include the plural.
C. No Assignment. Neither party will assign or transfer any rights or obligations under these Terms without the prior written consent of the other.
D. Notices. For general business communications, as well as for legal notices required or permitted by these Terms, You may communicate with VideoMedicine through the Contact Us link on our website www.VideoMedicine.com. VideoMedicine may communicate with You using the contact information You provided during registration.
E. Arbitration. All claims and disputes arising under or relating to these Terms are to be settled by binding arbitration in the state of Georgia in the United States. The arbitration shall be conducted on a confidential basis and pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by a single, English-speaking arbitrator experienced in Georgia law and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may only be confirmed or challenged in a court of competent jurisdiction located within the state of Georgia.
F. Severability. If any term or other provision of these Terms is determined to be invalid, unlawful or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of these Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.
G. Waiver. The waiver by VideoMedicine of Your breach of any provision of these Terms shall not operate or be construed as a waiver of any other or subsequent breach by You.
H. Force majeure: A party shall not be liable for any failure of or delay in the performance of the requirements of These Terms for the period that such failure or delay is caused by factors beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.
I. Headings: Headings in these Terms are for the convenience of the reader, and of themselves are of no significance and unenforceable.
J. Confidentiality: Neither party shall use, or disclose to any person, either during the term or after the termination of these Terms, any source or object codes, technical data, correspondence or any other information or materials owned or provided by the other party or its Affiliates, or its clients or contractors hereunder (collectively, “Confidential Information”), or disclose any information concerning the contents of these Terms, except for purposes consistent with the administration and performance of a party’s obligations hereunder or as required by law.
K. Counterparts. These Terms may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.
L. Complete Agreement: With respect to the VideoMedicine application, these Terms, together with the Business Associate Addendum, constitute the entire agreement between You and VideoMedicine, and supersedes all prior or contemporaneous written or oral agreements. These Terms may be changed only by mutual agreement, in writing, of the authorized representatives of Yourself and VideoMedicine.
Business Associate Addendum
A. Under the terms of the Addendum, the Health Professional shall provide, and VideoMedicine shall have access to, certain information concerning Consumers having sessions with the Health Professional, some of which may constitute Protected Health Information (“PHI”) or Electronic Protected Health Information (“ePHI”) or both.
B. The Parties desire to reasonably protect the individual privacy and the security and confidentiality of the PHI and ePHI disclosed to VideoMedicine by Health Professional or generated by VideoMedicine on behalf of Health Professional in accordance with the
Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) (“HIPAA”) and its accompanying privacy and security regulations, as from time to time amended (“HIPAA Regulations”), the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5), and its attendant regulations and guidance, as from time to time amended (“HITECH Act”), and, where applicable, the Safe Harbor Principles of the European Commission Decision 2000/520/EC of 26 July 2000, as well as any other applicable laws, including without limitation any applicable state laws pertinent to the privacy or security or both of medical information.
C. Accordingly, the Parties enter into this Addendum governing VideoMedicine’s use and disclosure of PHI and VideoMedicine’s implementation of safeguards to reasonably and appropriately protect the confidentiality, integrity, and availability of ePHI.
In consideration of the mutual promises below and the exchange of information pursuant to this Addendum, the Parties agree as follows:
a. Business Associate. “Business Associate” shall mean VideoMedicine.
b. Covered Entity. “Covered Entity” shall mean Health Professional.
c. Data Aggregation. “Data Aggregation” shall have the same meaning given to such term in 45 C.F.R. § 164.501.
d. Designated Record Set. “Designated Record Set” shall have the same meaning given to such term in 45 C.F.R. § 164.501.
e. Electronic Protected Health Information. “Electronic Protected Health Information” or “ePHI” shall have the same meaning as the term “electronic protected health information” in 45 C.F.R. § 160.103, limited to the information created, received, maintained or transmitted by VideoMedicine from or on behalf of a Consumer or a Patient.
f. Health Care Operations. “Health Care Operations” shall have the meaning set out in its definition at 45 C.F.R. § 164.501.
g. Individual. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g).
h. Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164.
i. Protected Health Information. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, limited to the information created or received by VideoMedicine from or on behalf of a Consumer or Patient. For the purposes of rendering care to patients in Europe, “PHI” shall include all personal data as defined by EU Directive 95/46/EC.
j. Required By Law. “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103 or under any other privacy laws applicable to You.
k. Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services, or his designee.
l. Security Rule. “Security Rule” shall mean the Standards for Security of Electronic Protected Health Information at 45 C.F.R. part 160 and part 164.
Any other terms used in this Addendum, but not otherwise defined, shall have the same meaning as those terms in the Privacy Rule, Security Rule, or any other HIPAA Regulations existing now or promulgated in the future.
Limits on Use and Disclosure of PHI: Except as otherwise specified herein, VideoMedicine may use and disclose PHI only as necessary to perform its obligations under the terms of the Terms or as required or permitted by law. All other uses and disclosures not specifically permitted or required by this Addendum or as required or permitted by state or Federal law are prohibited.
2. Privacy Rule Obligations and Activities of VideoMedicine: With regard to the use and/or disclosure of PHI, VideoMedicine shall:
(a) not use or further disclose PHI other than as permitted or required by this Addendum or as Required By Law;
(b) use reasonable safeguards to prevent the use or disclosure of PHI other than as provided for by this Addendum;
(c) mitigate, to the extent practicable, any harmful effect that is known to VideoMedicine of a use or disclosure of PHI by VideoMedicine in violation of the requirements of this Addendum;
(d) report to the Health Professional’s designated privacy officer or other designated administrator or officer, in writing, within a reasonable period of time, any use and/or disclosure of the PHI that is not permitted or required by the terms of this Addendum and of which VideoMedicine becomes aware;
(e) require that any and all agents, including subcontractors, to whom it provides PHI received from, or created or received by VideoMedicine on behalf of the Health Professional agree, in writing, to adhere to the same restrictions and conditions on the use and disclosure of PHI that apply throughout this Addendum to VideoMedicine with respect to such PHI;
(f) upon request of the Health Professional, provide access to PHI maintained by VideoMedicine on behalf of the Health Professional in a Designated Record Set to the Health Professional or to an Individual, as directed by the Health Professional, in accordance with the requirements of 45 C.F.R. § 164.524 (such access shall be permitted within a reasonable period of time and in a reasonable manner); provided, however, that the Health Professional shall provide VideoMedicine with a clear identification of that PHI which is to be included in the Designated Record Set.
(g) make available, on reasonable terms, its internal books and records relating to the use and disclosure of PHI received from, or created or received by VideoMedicine on behalf of the Health Professional to that Health Professional, or to the Secretary, for purposes of permitting the Secretary to determine the Health Professional’s compliance with the Privacy Rule;
(h) make information available, within a reasonable time, to the Health Professional regarding VideoMedicine’s disclosures of PHI, and document such disclosures, in a manner sufficient to permit the Health Professional to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528; and
(i) upon termination of the Addendum, if feasible, return to the Health Professional, or, at the Health Professional’s request, destroy, all PHI received from, or created or received by, VideoMedicine on behalf of the Health Professional that VideoMedicine still maintains in any form, and retain no copies of such PHI or, if such return or destruction is not feasible, VideoMedicine shall notify the Health Professional in writing of the conditions that make such return or destruction infeasible and shall extend the protections of this Addendum to such PHI and limit further use or disclosure to those purposes that make the return or destruction of such PHI infeasible, for so long as VideoMedicine maintains such PHI.
(j) If You determine that, under applicable law, VideoMedicine is under any other obligations respecting Patient or Consumer privacy, confidentiality, or security, You will bring that conclusion to Our attention so we may deliberate with You about Your conclusion and its implications for You and for Us.
3. Permitted Uses And Disclosures By VideoMedicine: Except as otherwise limited in this Addendum:
(a) VideoMedicine may use or disclose PHI to perform functions, activities, or services for, or on behalf of, the Health Professional as specified in the Terms, provided that such use or disclosure would not violate the Privacy Rule or other applicable state or federal laws if done by the Health Professional himself;
(b) VideoMedicine may use PHI in its possession for the proper management and administration of VideoMedicine or to carry out the legal responsibilities of VideoMedicine;
(c) VideoMedicine may disclose PHI for the proper management and administration of VideoMedicine, provided that such disclosures are Required By Law, or provided that VideoMedicine represents to the Health Professional in writing that it has obtained reasonable assurances, from the person to whom the PHI is to be disclosed, that it will remain confidential and be used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and that person notifies VideoMedicine
of any instances of which it is aware in which the confidentiality of the PHI received has been breached;
(d) except as otherwise limited in this Addendum, VideoMedicine may elect to use PHI to provide Data Aggregation services to the Health Professional as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B); and
(e) VideoMedicine may use PHI to report violations of law to appropriate state or federal authorities as permitted by 45 C.F.R. § 164.502(j)(1);
(f) VideoMedicine may rely upon the Health Professional to identify and comply with any requirements imposed by legal authorities other than HIPAA that pertain to the privacy or security or both of PHI received from, or created or received by, VideoMedicine on behalf of the Health Professional.
4. Privacy Rule Obligations of Health Professional: The Health Professional shall:
(a) notify VideoMedicine of any restriction on the use or disclosure of PHI that the Health Professional has agreed to in accordance with 45 C.F.R. § 164.522, provided such changes affect VideoMedicine’s permitted or required uses and disclosures of PHI;
(b) not request VideoMedicine to use or disclose PHI in any manner that would not be permitted under the Privacy Rule if done by the Health Professional, except for Data Aggregation or management and administrative activities of VideoMedicine; and
(c) not request VideoMedicine to use or disclose PHI in any manner that would not be permitted under any legal authority other than the Privacy Rule if done by the Health Professional, except for Data Aggregation or management and administrative activities of VideoMedicine.
5. Security Rule Obligations of VideoMedicine: With regard to the Security Rule, VideoMedicine agrees that it shall:
(a) implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the ePHI that VideoMedicine creates, receives, maintains or transmits;
(b) oblige any agent, including a subcontractor, to whom VideoMedicine provides such ePHI, to agree to implement reasonable and appropriate safeguards to protect that ePHI; and
(c) report to the Health Professional any “security incident” (as that term is defined at 45 C.F.R. § 164.304) of which VideoMedicine becomes aware.
6. Breach Notification: VideoMedicine shall notify the Health Professional, Consumer and Patient, of any breach of “unsecured PHI” (as that term is defined at 42 U.S.C. §
17932(h)(1), 45 C.F.R. § 164.402 and in further guidance issued by the Secretary under Section 13402(h)(2) of the HITECH Act) in accordance with 45 C.F.R. §164.410 without reasonable delay but in no event later than ten (10) calendar days after discovery of a breach. The notice of any breach of unsecured PHI will include, to the extent possible, the identification of each individual whose unsecured PHI has been, or is reasonably believed by VideoMedicine to have been accessed, acquired, used or disclosed during the breach and any the following information the Health Professional is required to include in its notice to the individual pursuant to 45 C.F.R. §164.404(c):
(a) a brief description of what happened, including the date of the breach and the date of discovery of the breach, if known;
(b) a description of the types of unsecured PHI that were involved in the breach (e.g. social security number, full name, date of birth, address, diagnosis);
(c) any steps VideoMedicine is aware of that the Individual should take to protect himself from potential harm resulting from the breach; and
(d) a brief description of what is being done to investigate the breach, mitigate the harm and protect against future breaches; and
(e) the contact procedures the Health Professional has developed for individuals to ask questions or learn additional information which shall include a toll-free number, an e-mail address, Web site, or postal address.
7. Term: The Term of this Addendum shall be effective for as long as the Health Professional uses VideoMedicine to communicate with Consumers or Patients.