TERMS OF SERVICE
Effective Date: April 1, 2023
RubiconMD and its affiliates (collectively, “RubiconMD” “we” or “us”) operates a platform that facilitates exchange of information between health care providers (the “Platform”). These Terms of Service (these “Terms”) constitute a binding legal agreement between you and RubiconMD that govern your access to and use of the Platform.
BY AGREEING TO THESE TERMS, YOU:
AFFIRM THAT HAVE READ AND UNDERSTAND THESE TERMS;
AGREE TO BE BOUND BY THESE TERMS WITHOUT LIMITATION OR QUALIFICATION; AND
AFFIRM THAT YOU ARE AT LEAST THE AGE OF LEGAL MAJORITY IN YOUR PLACE OF RESIDENCE AND OTHERWISE LEGALLY COMPETENT TO ENTER INTO CONTRACTS.
If you do not agree to all of these Terms without limitation or qualification, you are not authorized to access and use the Platform, and must not access or make any use of the Platform.
IMPORTANT DISCLAIMERS AND NOTES
(1) You acknowledge and agree that the Platform is provided for information purposes only, as described in the applicable Services Agreement. RubiconMD is not a health care provider, and the Platform does not provide or attempt to provide medical advice, assessments or treatment services.
(2) You represent and warrant that you are a health care provider or personnel of a medical practice who has entered into an agreement for services with RubiconMD or a professional entity that has obtained the right to use the Platform (a “Services Agreement”), and you desire to access and use the Platform (and the content and information provided through the Platform) for purposes of facilitating care to patients of your medical practice.
(3) You agree to access and use the Platform and all data and content accessed through the Platform for permitted purposes under the applicable Services Agreement, and solely as permitted pursuant to the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No.111-5, and their implementing regulations (as amended from time to time, “HIPAA”).
(4) You acknowledge and agree that these Terms contain provisions that limit our liability to you and dictate terms for dispute resolution. The sections of these Terms entitled “Disclaimer of Warranties”, “Limitations of Liability”, “Waiver of Right to Pursue Class Action Claims”, “Limitation on Time to Bring an Action”, and “Waiver of Jury Trial; Agreement to Arbitrate Claims”, among others, limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action. Please read these terms carefully.
MODIFICATION OF TERMS
The Effective Date of these Terms is set forth at the top of this page. Please note that we may change or supplement these Terms from time to time. If any such changes materially alter your rights, we will notify you of these changes by either posting notice on the Platform or by sending you an email to the email address we have on file for you. We will not make changes that have a retroactive effect unless we are legally required to do so. You and we both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are other communications issues that prevent email from reaching you. Therefore, we encourage you to frequently visit this page to monitor any changes. Your continued use of or access to the Platform following the posting of any changes to these Terms constitutes acceptance of those changes.
If you disagree with any changes to these Terms, you should terminate your use of the Platform. Your continued use of the Platform after the effective date of any changes constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements about the Terms.
When you use the Platform, you are communicating with us electronically, and you consent to receiving communications from us electronically, including messages posted to your account. You acknowledge and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that the same be in writing.
USE OF THE PLATFORM
The following rules apply to your use of the Platform:
▪ You will only use the Platform as expressly authorized in these Terms.
▪ You must be at least 18 years of age to use the Platform.
▪ You may use the Platform solely for purposes permitted under the Applicable Services Agreement.
▪ You will not share your login information (username, password, and/or touch ID) with any other person. Only you will access the Platform through your login information.
▪ You may not use the Platform to send unsolicited messages (also known as junk mail or SPAM) or messages that do not correctly identify the sender or alter the attribution of origin in electronic mail messages or postings.
▪ You will not access the Platform through automated methods.
▪ You are fully responsible for all uses of the Platform by anyone accessing the Platform using your access credentials. This includes access by any person that has obtained your access credentials through your failure to use appropriate measures to safeguard your use ID or password.
▪ You must immediately notify us in the event that (i) your password is lost or stolen or (ii) you become aware of any unauthorized use of your username and password or other breach of security that might affect the Platform or any Platform Content.
▪ You agree to provide us with accurate and truthful information during the registration process and you will update us if that information changes.
▪ You agree that all information you provide through the Platform is accurate and complete to the best of your knowledge.
▪ You understand and agree that other health care providers with whom you engage on the Platform are not our employees or agents.
▪ You must not imply or state, directly or indirectly, that you are affiliated with or endorsed by us.
▪ You agree that you will use the Platform only in a manner that complies with all HIPAA, federal, and state privacy and security laws and requirements and with the Business Associate Agreement entered into by and between us and you. In accordance with HIPAA, if the data or other information you input into the Platform (“Your Content”) includes PHI, you will provide only the minimum necessary PHI and only for permitted uses and disclosures, pursuant to 45 C.F.R. § 164.502. You will only input PHI into fields specifically designated as PHI- permitted fields on the Platform.
▪ If you receive or provide any PHI or other patient identifiable information through the Platform in violation of HIPAA or any other federal or state privacy or security laws, you will immediately notify us, and you will immediately return or securely destroy all such information.
▪ You represent and warrant that (i) you are legally authorized to provide Your Content, (ii) Your Content does not infringe, violate or misappropriate the rights (including rights of privacy and publicity and intellectual property rights) of any person or entity, and (iii) Your Content is not pornographic, violent, illegal, infringing of other people’s rights, slanderous or libelous. You acknowledge and agree that we reserve the right to remove any of Your Content that we determine is objectionable in our sole discretion.
▪ You must not remove, circumvent, disable, damage, or otherwise interfere with any: (i) security-related features of the Platform; (ii) features of the Platform that prevent or restrict use or copying of any content accessible through the Platform; or (iii) features of the Platform that enforce limitations on use of the Platform.
▪ You must not intentionally interfere with or damage operation of the Platform, or any other users’ enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.
▪ You must not attempt to gain unauthorized access to the Platform, other accounts, computer systems or networks connected to the Platform, or any part of it, through hacking, password mining or other improper or illegal means. You must not access or attempt to access other users’ accounts.
▪ You must not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express prior written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform, or modify the Platform in any manner or form.
▪ You must not make any use of the Platform or Platform Content that violates these Terms or any applicable law, including but not limited to the Stark Law and the Anti-Kickback Statute.
You understand that the Platform does not provide medical advice. You understand that we are not a health care provider, nor are we providing medical advice, diagnosis, or treatment services via the Platform. We provide the Platform solely for informational purposes to facilitate health care to your Patients. You are solely responsible for ensuring appropriate use of any information you obtain through the Platform in accordance with your professional medical judgement and applicable law.
We may make changes to or discontinue any aspect or feature of the Platform at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension or discontinuance of any feature or component of the Platform.
BUYNOW eCONSULT SUBMISSION LIMIT
Each User may submit a maximum of ten (10) eConsults per month. You understand that each User within Your organization should purchase an individual license to submit eConsults.
We reserve the right to increase or decrease the number of eConsults allowable per month in our sole discretion. We will provide thirty (30) days written notice of any such change.
BUYNOW FEES AND REFUNDS
We reserve the right to increase or decrease the cost of submitting an eConsult at any time in our sole discretion. We will provide thirty (30) days written notice of any such change.
There are no refunds for payment for use of the BuyNow Platform. If You Purchase 12 months of access to the BuyNow Platform you will continue to maintain access to the Platform until the end of your 12 month term.
OWNERSHIP OF THE PLATFORM AND PLATFORM CONTENT
As between you and us, we and/or our third party providers own the Platform and all information and data (excluding Your Content), text, photographs, audio, video and other materials and content available through the Platform (collectively, “Platform Content”), and you are granted only a limited right to use the Platform and Platform Content for purposes of facilitating health care to your Patients. We and our licensors exclusively own all rights, title and interests (including all intellectual property rights) in and to the Platform, Platform Content and all components thereof. We grant you a limited, non-exclusive, non-transferable right and license to access and use the Platform, solely for your personal, non-commercial use.
Except for the limited license granted to you as provided above or as otherwise expressly provided in these Terms, we reserve all other rights. We may revoke this license at any time for any reason without any further obligation to you. You may not (nor may you permit others to):
▪ copy, modify, create derivative works of, display, perform, distribute, transmit, download, upload, post, sell, rent, sublicense, transfer, or disclose any aspect of the Platform or any Platform Content, in whole or in part, in any form or by any means;
▪ mirror, frame, reverse engineer, reverse assemble, decompile or otherwise attempt to discover any source code or trade secrets within the Platform;
▪ use any metatags or any other “hidden text” utilizing the name “RubiconMD” without our prior written permission, in our sole discretion
As between you and us, you always remain the sole owner of Your Content. You agree that we may use Your Content for the purposes for which you provided it. The primary use of Your Content is to display it on the Platform for the purposes for which you provided it (e.g., seeking or providing feedback), and you grant us a nonexclusive right to use, store, display, perform and distribute Your Content for that purpose. We may also use Your Content to review performance, quality and effectiveness of the Platform, to perform data analysis, and we may take screen shots or frame certain areas of the Site for marketing and promotional purposes, and you agree that we and our service providers may use Your Content in this way. We also retain full ownership rights over any PHI de-identified in accordance with HIPAA. You are solely responsible for Your Content, including but not limited to the accuracy and reliability of the information provided on the Platform by you or any of your or your organization’s authorized Drafters. You agree that you will pay and indemnify us for all losses, liabilities, damages costs and expenses (including attorney’s fees and expenses) that we may incur in connection with any claim or allegation relating to Your Content. We are not responsible for storing or backing up Your Content. We are not responsible if Your Content is lost for any reason.
We are not obligated to monitor access or use of the Platform, Platform Content or Your Content or to review or edit the same, but we have the right to do so for the purpose of operating the Platform, ensuring compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right to monitor your use of the Platform at any time (with or without notice to you) to verify compliance with these Terms and/or any applicable law and to investigate, and cooperate with enforcement agencies in the investigation of, any suspected or alleged misuse of the Platform. We may refuse to post or remove any User Content that we determine violates these terms or is otherwise objectionable in our sole discretion and without liability to you.
All trademarks, trade names and logos appearing on or through the Platform (the “RubiconMD Trademarks”) are owned by us or licensed by us. You may not use or display any RubiconMD Trademarks in any manner without our prior written permission. We reserve all rights.
If you choose to provide us with any comments, suggestions, ideas or other feedback, you agree that we have an unrestricted right to use it, and you are not entitled to receive any compensation.
PLATFORM ACCESS AND UPDATES
We do not guarantee that the Platform or any aspect of the Platform is compatible with your operating system, browser, mobile device, or other software or equipment. If you access and use the Platform on a mobile device (for example, a tablet or smartphone), you must have wireless service through Wi-Fi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) relating to use of the Platform through your mobile device. By using the Platform, you understand that certain information about your usage of the Platform may be communicated to us.
RubiconMD may, but is not obligated to, from time to time, in its sole discretion, develop and provide updates for our software, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that RubiconMD has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
LINKS TO THIRD PARTY SITES & SERVICES
Either you or we may terminate your access to the Platform at any time, with or without cause. If you wish to terminate your account, you may do by emailing us at firstname.lastname@example.org. It may take up to 3 business days before cancellation will take effect. We may terminate your right to use the Platform at any time by providing you with notice through the e-mail address we have on file at the time. We may deactivate, terminate or suspend your account or access to the Platform at any time: (a) if we, in our sole discretion, determine that you are or have been in violation of these Terms; (b) if we, in our sole discretion, determine that you have created risk or possible legal exposure for RubiconMD; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material modification of the Platform, (f) upon the termination of the applicable Service Agreement; or (e) due to unexpected technical issues or problems.
Termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.
Termination of our relationship will terminate any rights and license we have provided to you in these Terms. In such event, you must immediately discontinue using the Platform. Any sections of these Terms which by their nature survive termination, will survive.
We have no obligation to store any of Your Content after termination. You agree that we will not have any obligation to store Your Content after termination of your account, and we shall have the right to permanently delete Your Content.
DISCLAIMER OF WARRANTIES
You understand and agree that we do not provide any warranties with respect to the Platform. THE PLATFORM (INCLUDING ALL PLATFORM CONTENT) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. You understand that we do not guarantee any particular response time but will use reasonable efforts to select a Consultant that will answer questions in a timely manner.
LIMITATIONS OF LIABILITY
RubiconMD’s liability to you is limited as set forth below. The limitations of liability will survive any termination or expiration of these terms.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE AS WELL AS OUR LICENSORS AND CONSULTANTS, ARE NOT LIABLE (UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR DAMAGE TO REAL, TANGIBLE OR INTANGIBLE PROPERTY. IN ADDITION, YOU AGREE THAT IN EVENT THAT ANY OF THE FOREGOING LIMITATIONS ARE NOT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS OR CONSULTANTS BE LIABLE FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (i) AMOUNTS PAID BY YOU OR PAYABLE TO YOU FOR USE OF THE PLATFORM IN THE PREVIOUS THREE MONTHS OR (i) TEN U.S. DOLLARS ($10.00).
If you have a dispute with another Platform user, that dispute is between you and that user. Even if we help facilitate resolution of the dispute, we are not responsible for the dispute and do not have any liability related to the dispute. You hereby release us from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You acknowledge and agree that the above limitations of liability, together with the other provisions in these Terms that limit liability, are essential terms and that RubiconMD would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
You are responsible for your actions; you agree you will pay and indemnify us for all losses, liabilities, damages costs and expenses (including attorney’s fees and expenses) that we may incur based on your breach of these Terms or any other action or inaction by you. If we (or any of our employees, directors, agents or affiliates, or any Users) get sued or any other claim is made against us (or them) related to anything you do (including any breach by you of these Terms), you agree that you will you will defend us against the suit or claim if we request it.
These Terms shall be governed by, and construed in accordance with, the substantive laws of the State of New York without regard to the choice of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
WAIVER OF RIGHT TO PURSUE CLASS ACTION CLAIMS.
You agree to only resolve disputes with us on an individual basis, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity.
LIMITATION ON TIME TO BRING AN ACTION.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Platform brought by you must be filed within one (1) year after such claim or cause of action arose or such claim or cause of action will be forever barred.
WAIVER OF JURY TRIAL; AGREEMENT TO ARBITRATE CLAIMS.
By agreeing to these Terms, both you and we are waiving the right to a jury trial on any disputes that may arise.
You agree to arbitrate all disputes between you and us. If a dispute arises between you and us relating to the Platform or these Terms, you and we agree that the dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations (“AAA Rules”). You and we agree to the following rules relating to any arbitration proceeding:
YOU AND RUBICONMD WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
The venue for all disputes arising under these Terms shall be in New York, New York but you and we may agree to conduct the arbitration by telephone, online and/or solely based on written submissions. You hereby waive any right to claim that such location is an inconvenient forum and covenant not to sue us in any other forum.
The arbitrator will have the power to grant whatever relief would be available in court under law or in equity (including attorney’s fees) and any award of the arbitrator will be final and binding on each of the parties.
The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You and we agree, to the extent practicable, to direct the arbitrator issue a decision within 120 days from the date the arbitrator is appointed. You and we acknowledge that if the arbitrator does not issue a decision within 120 days, such event will not limit or waive the powers of the arbitrator or this agreement to arbitrate.
All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
The award of the arbitrator will be in writing and will not include any statement setting forth the reasons for the disposition of any claim.
Either you or we may seek an injunction at any time from any court of competent jurisdiction as necessary to protect the rights or property of you or us pending the completion of arbitration.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, RubiconMD will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse RubiconMD for all fees associated with the arbitration that RubiconMD paid on your behalf which you otherwise would be obligated to pay under the AAA Rules.
The Platform is intended for use in the United States of America only. If you visit the Platform or contact us from outside of the United States of America, please be advised that (i) any information you provide to us or that we automatically collect will be transferred to the United States of America; and (ii) that by using our Platform or submitting information, you explicitly authorize its transfer to and subsequent processing in the United States of America in accordance with these Terms.
GENERAL LEGAL TERMS
▪ Violations of Terms. Please report violations of these Terms by sending an e-mail to email@example.com.
▪ Assignment. These Terms inure to the benefit of and will be binding upon our and your permitted successors and assigns. You must not transfer any of your rights or obligations under these Terms to anyone else without our prior written consent. All of our rights and obligations under these Terms are freely assignable by us.
▪ Notice. RubiconMD may provide you with notices, including those regarding changes to the Terms, by postings on the Platform. You agree that we may also send you notice via email to the email address you have provided, and we are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., “junk” or “spam” folder) or if you fail to update your email address.
▪ Amendment. Except as described in the section entitled Modification of Terms, these Terms may not be amended unless in writing and signed by you and us
▪ Waiver. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Waivers are effective only if in writing and signed by us.
▪ Severability. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, such provision will be limited or eliminated to the minimum extent necessary, and the other provisions of these Terms remain in full force and effect.
▪ Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and RubiconMD as a result of the Terms or use of the Platform.
▪ Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and shall not be deemed to limit or affect any of the provisions hereof.
▪ Form of Agreement. A printed version of these Terms and of any related notice given in electronic form shall be admissible in arbitral, judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Questions and Comments
If you have a question or comment regarding the Platform, please contact us via email at firstname.lastname@example.org. Your input is valuable to us.