Metro eCare Online Services Agreement
This Online Services Agreement (“Agreement”) is effective as of the date this Agreement is accepted (“Effective Date”) and is between the individual that clicks to accept this Agreement (“Client”) and Metro eCare, LLC, a Tennessee limited liability company (“Metro eCare”).
1. Use of the Site. Metro eCare operates a website (“Website”) that offers access to online telemedicine services (“Services”), enabling members or individual users to report their health history and current health issues and engage healthcare professionals (“Providers”) to obtain medical and healthcare services. By accessing the Website, you agree to be bound to the terms of this Agreement and all other terms and policies that appear on the Website. If you do not wish to be bound to the terms of this Agreement, you may not use the Website or Services. The content on the Website is not medical advice or an endorsement, representation, or warranty that you need the Services or that the Services are safe, appropriate, or effective for you.
2. Changes. From time to time, Metro eCare may update the terms and conditions of this Agreement without notice. If Client elects not to accept the new terms and conditions, then Metro eCare may, in its sole discretion, immediately terminate this Agreement, discontinue providing the Services, and refund to Client the amount of money that Client has prepaid for Services which Client has not yet received as of the date Client elects not to accept the new terms and conditions. Client’s use of the Services after an update of the terms and conditions of this Agreement constitutes Client’s consent to such changes.
(a) All of the Providers who deliver Services through Metro eCare are independent professionals solely responsible for the Services each provides to you. Neither Metro eCare nor the Website engage in the practice of medicine or any other licensed profession, and Metro eCare does not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his or her Services and compliance with federal, state, and all other requirements applicable to his or her profession. Metro eCare does not guarantee Providers’ appropriate licensing nor does Metro eCare guarantee any results to Client through the Services.
(b) Metro eCare will offer the Services to Clients in two price plans from which Client may choose to participate.
(i) Membership. For a monthly membership fee, a Client (“Member”) may access the Services and engage Providers (each fifteen (15) minute access, a “Unit”) up to a minimum number of Units per month (“Monthly Fee”), as specified on the price sheet available on the Website. Members will be billed on a recurring monthly basis for one month of Services in advance of each month. Upon acceptance of this Agreement, new Members shall pay the Monthly Fee, which will provide the Members access to the Services beginning on the date of acceptance and payment and continuing through the same day of the next month. Members may cancel their monthly membership at any time, and the Members will not be billed for the next month. However, Members will not receive a refund or credit for a partial month when Members cancel the Service.
(ii) Individual Use. Clients may pay for each Unit of the Services instead of joining as a Member. Upon acceptance of this Agreement, such Clients shall pay the Unit Fee, and Clients shall pay the Unit Fee each time he or she accesses the Services.
(iii) Membership Fees and Unit Fees (collectively, the “Fees”) are set in the amount as stated on the Website, and the Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes owed by Metro eCare.
4. Payment Terms. Client shall pay Metro eCare the Fees with a credit card on the Website (“Payment Mechanism”). Client agrees to provide Metro eCare the information requested by Metro eCare pertaining to the Payment Mechanism, and Client hereby authorizes Metro eCare to charge the Payment Mechanism for all Charges applicable to Client’s purchase of the Services provided pursuant to this Agreement. Members agree to immediately notify Metro eCare of any changes in Client’s Payment Mechanism and provide a new Payment Mechanism and other information requested by Metro eCare. If Metro eCare provides payment terms to Client, Client agree to pay all Charges in accordance with such payment terms.
5. Insurance. In the event the Services that Client receives are covered by Client’s insurance, Client hereby authorizes Metro eCare to bill the appropriate charges to Client’s insurance company. If prompted on the Website, Client agrees to provide Metro eCare the information requested by Metro eCare pertaining to Client’s insurance. Members agree to immediately notify Metro eCare of any changes in Client’s insurance and provide updated insurance information as requested by Metro eCare. Notwithstanding Client’s authorization for Metro eCare to bill Client’s insurance, Client agrees to be responsible for any and all costs associated with the Services.
6. Client Acknowledgements, Representations, and Warranties.
(a) Age Requirement. Client is at least eighteen (18) years of age. The Services are available for use by minors with the requirement that Client is the patient’s parent or legal guardian authorized to make healthcare decisions. If Client registers as the parent or legal guardian authorized to make healthcare decisions on behalf of a minor, Client is fully responsible for payment for the Services and complying with the terms and conditions of this Agreement.
(b) Limitations. As a condition of using the Services, Client represents and warrants that Client will not use the Website or Services for any illegal or unauthorized purpose, and Client’s use of the Website and Services will not violate any laws in Client’s jurisdiction (including but not limited to copyright laws). Client represents and warrants that it will only use the Website for personal, non-commercial use only, and Client will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Website, except as generally permitted through this Agreement.
(c) Geographic Location. Client represents and warrants that he or she is physically located in the state that Client selected on the Website and that Client will only receive the Services while present in that state.
(d) Informed Consent. Client hereby acknowledges and understands that Metro eCare makes no guarantees of the diagnosis, treatment, prescription, or outcome obtained through the Services and the Providers.
(e) Potential Risks. Client hereby acknowledges that, as with any medical procedure, there are potential risks associated with the use of telemedicine. Although Metro eCare believes that these risks are very low, the risks of using telemedicine may include the following:
(i) Delays in the medical evaluation, consultation, or treatment due to deficiencies or failures of the Website, the Internet, or other related equipment or technology;
(ii) Failure of certain security protocols, causing a risk of a breach of privacy of personal health information;
(iii) Failure to properly diagnose, adverse or allergic reactions to medications, or other negative outcomes due to a lack of access to complete medical records;
(f) Shared Information. Client hereby acknowledges that Client’s personal health information may be shared, pursuant to the HIPAA Requirements as defined below, with other individuals for treatment, payment, and healthcare operations purposes, or may be shared under the following circumstances: (1) a valid court order is issued for medical records; (2) suspected abuse, neglect, or domestic violence; or (3) preventing or reducing a serious threat to someone’s health or safety.
7. User Name and Password. During the registration process, Metro eCare provided Client with a user name and password that allows Client to have access to the Services through the Website. If Metro eCare allows, Client may create user IDs and passwords for all Clients. Client will not provide any of Client’s user names or passwords to access Services to any other person or entity, or allow any other person or entity to access Services provided to Client under any of Client’s user names and passwords. Client agrees that Client is solely responsible for any actions that occur under any of Client’s user names and passwords. In the event that any of Client’s user names and passwords become known by a third party, Client agrees to notify Metro eCare immediately.
9. User Content. Client or Client’s personnel intend to load or give Metro eCare access to health information (“Content”) to be used by the Services. Metro eCare acknowledges that, as between the parties, all Content shall remain Client’s personnel’s property. Client acknowledges that Metro eCare is not responsible for Content loaded into the Website by Client.
10. Ownership. Metro eCare owns all right, title and interest in (i) the software that implements the Services and (ii) all elements of the Website. Client does not acquire any ownership or rights in the Services or Website except as expressly provided herein. The Services and Website are copyrighted. Unauthorized copying of any element of the Website or Services or any accompanying written materials is expressly forbidden. Client agree that Client may be held
legally responsible for any copyright infringement that is caused or encouraged by Client’s failure to abide by the terms of this Agreement.
11. Updates. Metro eCare may, from time-to-time, upgrade or modify the Services and the Website (“Updates”). All Updates are provided to Client pursuant to the terms and conditions of this Agreement.
12. Technical Support. Metro eCare agrees to provide technical support to Members. Technical support is available by electronic mail using the support email provided on the Website and by calling 855-475-9633 (855-4Metro eCare).
13. Term; Termination.
(a) Term. The term of this Agreement effective as of the day hereof and shall terminate upon the end of the Unit for Clients who pay per Unit and shall terminate upon the date that Members discontinue paying the Monthly Fee.
(b) Immediate Termination. Either party may terminate this Agreement immediately. As stated herein, in the event a Monthly Client terminates this Agreement, Members will not be billed for the next month. However, Members will not receive a refund or credit for a partial month for which the Member has prepaid.
(c) Effect of Termination. Upon termination of this Agreement, any Content stored by Metro eCare will be deleted within 30 days of the termination and Client’s user name and password will be immediately disabled. Metro eCare will allow Client to retrieve all of its content during the 30 days after termination. Any Content deleted by Metro eCare because of the termination of Client’s use of the Services cannot be retrieved.
14. Website Modifications; Price Changes. Metro eCare reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services or the Website (or any part thereof) with or without notice. The Fees are subject to change upon 30 days’ notice from Metro eCare. Metro eCare shall not be liable to Client or to any third party for any modification, price change, suspension or discontinuance of the Website.
15. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE WEBSITE, AND THE VIRTUAL CLINIC ARE PROVIDED "AS IS", AND Metro eCare AND ITS PROVIDERS, SUPPLIERS, AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SERVICES AND THE WEBSITE (INCLUDING, W I T H O U T L I M I T AT I O N , A C T U A L A N D I M P L I E D WA R R A N T I E S O F MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES THAT THE SERVICES OR WEBSITE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR- FREE. Metro eCare does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable or that any errors in the Website or Services will be corrected.
16. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Metro eCare be liable under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind (“Consequential Losses”), including, without limitation, Consequential Losses arising from loss of profits, revenue, data or use, or from
interrupted communications or damaged data or Content, or from any defect or error or in connection with Client’s acquisition of substitute goods or services or from malfunction of the Services, or any such Consequential Losses arising from breach of contract or warranty or from negligence or strict liability, even if Metro eCare or any other person has been advised or should know of the possibility of such Consequential Losses, and notwithstanding the failure of any remedy to achieve its intended purpose. Metro eCare’ entire liability under any provision of this Agreement is limited to, in Metro eCare’s sole discretion, the repair or replacement of the Services or Website, or an amount equal to the Fees paid under this Agreement.
17. HIPAA Requirements. To the extent applicable to this Agreement, Metro eCare agrees to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42
U.S.C. Section 1320d et seq. (“HIPAA”) and any current and future regulations promulgated thereunder, including, without limitation, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security standards contained in 45 C.F.R. Parts 160, 162 and 164 (the “Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162 (the “Federal Electronic Transaction Regulations”), all as amended from time to time and, all collectively referred to herein as “HIPAA Requirements”. Metro eCare agrees not to use or further disclose any Protected Health Information (“PHI”) (as defined in the Federal Privacy Regulations) or Electronic Protected Health Information (“EPHI”) (as defined in the Federal Security Regulations), other than as permitted by the HIPAA Requirements and the terms of this Agreement. Metro eCare agrees to make its internal practices, books and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the HIPAA Requirements. In addition, Metro eCare agrees to comply with any state laws and regulations that govern or pertain to the confidentiality, privacy, security of, and electronic transactions pertaining to, health care information.
(a) No Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action upon any third party.
(b) Waiver. No party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.
(c) Assignment. This Agreement is not assignable by Client. Any unauthorized assignment of this Agreement is void. Metro eCare may assign this Agreement, in whole or in part, or subcontract its obligations under this Agreement, in whole or in part, without notice to Client and upon such assignment, Metro eCare shall be released from all liability hereunder.
(d) Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof will not affect the validity or enforceability of the remainder of such provision, term, or condition or of any other provision, term, or condition.
(e) Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, electronic mail, overnight courier service, first class mail postage prepaid, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective
upon personal delivery, or upon delivery if sent by electronic mail, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices to Client shall be sent to the address provided when Client registered for the Services. Notices for Metro eCare shall be sent to 8848 Cedar Springs Lane, Suite 201 Knoxville, TN 37923.
(f) Governing Law. The terms and conditions of this Agreement are governed by and construed in accordance with the laws of the State of Tennessee, USA without resort to its conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and does not govern or apply to the terms and conditions of this Agreement.
(g) Jurisdiction and Venue. The parties hereby irrevocably submit to the jurisdiction of the state courts of the State of Tennessee and to the jurisdiction of the United States District Court for the Eastern District of Tennessee, for the purpose of any suit, action, or other proceeding related to, arising out of or based upon this Agreement or in any way related to, arising out of or involving the Virtual Clinic, Services or Website; waive and agree not to assert by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in any inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; and waive and agree not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such Tennessee state or federal court. The parties hereby consent to service of process by registered mail at the address to which notice is to be given. The exclusive venue for any proceeding under this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee. Client acknowledge that the prices for Services offered under this Agreement are in part dependent on Client’s consent to jurisdiction in Tennessee and exclusive venue in Knox County, Tennessee, and without Client’s consent to this jurisdiction and venue provision the prices for Services would be higher.
(h) Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
(i) Entire Agreement. This Agreement and the Paper Copy constitute the entire agreement between the parties hereto and supersedes any prior oral or written agreements between the parties. This Agreement may not be amended unless such amendment is in writing and signed by all parties hereto.