Last revised January 16, 2023
These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites and mobile applications) owned and controlled by Tell Health, Inc., including the www.Tell.Health website (the “Site”) and the Tell Health mobile application (the “App”), as well as the services (“Services”) available to users, including the secure messaging services (Collectively the “Digital Services”). Tell Health, Inc. (“Tell Health,” “we,” “us,” and “our”) provides secure messaging between physicians and other healthcare professionals (individually the “Provider” and collectively the “Providers”) and their patients. (See Section 19 for supplemental terms applicable to Providers. The terms “you” and “your” means you, your dependents if any, and any other person accessing your Tell Health account.
Your acceptance of, and compliance with, these Terms of Use is a condition to your use of the Digital Services. By clicking “accept”, you acknowledge that you have read, understand, and accept all terms and conditions contained within these Terms of Use and our Privacy Policy. If you do not agree to be bound by these terms, you are not authorized to access or use the Digital Services; promptly exit Digital Services.
Binding Arbitration. These Terms of Use provide that all disputes between you and Tell Health that in any way relate to these Terms of Use or your use of the D will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Tell Health.
All pages, features and content within these Digital Services and any material made available for download are the property of Tell Health, or its licensors or suppliers, as applicable. The Digital Services are protected by United States and international copyright and trademark laws. The contents of the Digital Services, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through these Digital Services (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by Tell Health. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of Tell Health without our express written consent.
You agree that information provided by you in connection with the Digital Services shall be governed by the Tell Health Privacy Policy, which is hereby incorporated and made a part of this Agreement. Additionally, you have the certain rights “to be forgotten” and to delete your account and related data as set forth more fully in our Privacy Policy.
The content of the Digital Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment or recommendations of any kind. You should always seek the advice of your qualified heath care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. Tell Health does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Digital Services. Reliance on any information appearing on the Digital Services, whether provided by Tell Health, its content providers, its clients, visitors to the Digital Services or others, is solely at your own risk.
Your interactions with the Digital Services are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither Tell Health, nor any of its subsidiaries or affiliates or any third party who may promote the Digital Services, shall be liable for any information or advice obtained from the Digital Services, nor any information obtained on the Digital Services. Tell Health does not recommend or endorse any specific tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any information received through the Digital Services is solely at your own risk and you assume full responsibility for all risks associated herewith.
Not for Emergencies
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
Tell Health’ Digital Services are not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything that appears or does not appear on the Digital Services. If you believe you have an emergency, call 911 or 112 immediately.
You should seek emergency help or follow up care when recommended by a physician or qualified healthcare provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
Not an Insurance Product
Tell Health is not an insurer. The Services are not insurance products, and the amounts you pay to Tell Health is not insurance premiums. If you desire any type of health or other insurance, you will need to purchase such insurance separately.
Violations of system or network security may result in civil or criminal liability. Tell Health will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of these Digital Services or any activity being conducted on these Digital Services.
In the event access to the Digital Services or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by Tell Health. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Digital Services may be revoked by Tell Health at any time with or without cause. You agree to defend, indemnify and hold Tell Health harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Tell Health arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Digital Services, or access by anyone accessing the Digital Services using your user ID and password.
Tell Health grants to you a non transferable license to use the App on devices that you own or control. Tell Health reserves all rights in and to the App not expressly granted to you under this Agreement. The terms of this Agreement will govern any content, materials, or services accessible from or purchased within the App as well as upgrades provided by Tell Health that replace or supplement the original App, unless such upgrade is accompanied by a new or revised Agreement. Without our prior written permission, you may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the App and, if you sell your device to a third party, you must remove the App from the device before doing so. You may not copy (except as permitted by this license), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App).
The license to use our App is restricted as follows:
The App may be used to access certain online services. In some cases, you will not receive a separate notice when the App connects to those services. Using the App constitutes your consent to the transmission of standard device information (including, but not limited to, technical information about your device, system, and application software) to those services. Your use of those services may be governed by additional terms and conditions. Using the online services will constitute your acceptance of and agreement to be bound by those additional terms and conditions, if any. You may not use any online services in any way that could harm those services, disrupt their operation, or impair any other user’s use of those services or the wireless network through which they are accessed. You may not use the online services to gain unauthorized access to or use of any service, data, account, or network by any means.
Certain location-enabled functionality made available in the App is provided by Google Inc., Apple Inc., and other third party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties of any kind.
All questions and requests relating to App support must be directed to Tell Health. The Third Parties, as defined in Section 26, are not responsible for providing support for the App and may not be contacted for support. We may change or remove functionality and other features of the App at any time, without notice.
Tell Health will have no liability for errors, unreliable operation, or other issues resulting from use of the App on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the App on Modified Devices will be at your sole and exclusive risk and liability.
Although Tell Health attempts to ensure the integrity and accuracy of the Digital Services, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Digital Services and Content thereon. It is possible that the Digital Services could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Digital Services by third parties. In the event that an inaccuracy arises, please inform Tell Health so that it can be corrected. Tell Health reserves the right to unilaterally correct any inaccuracies on the Digital Services without notice. Information contained on the Digital Services may be changed or updated without notice. Additionally, Tell Health shall have no responsibility or liability for information or Content posted to the Digital Services from any non-Tell Health affiliated third party.
We have made significant efforts to accurately display the colors of our products that appear on the Digital Services. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
You acknowledge that the products and Content which are sold or licensed on the Digital Services, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. By purchasing, downloading or using technology or software from the Digital Services, you agree to abide by the applicable laws, rules and regulations - including, but not limited to the Export Administration Act and the Arms Export Control Act - and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury. U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless Tell Health from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
Tell Health makes no representations whatsoever about any other website that you may access through these Digital Services. When you access a non-Tell Health website, please understand that it is independent from Tell Health, and that Tell Health has no control over the content on that website. In addition, a link to a non-Tell Health website does not mean that Tell Health endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to these Digital Services, you do this entirely at your own risk.
If you submit, upload or post any comments, ideas, suggestions, information, files, videos, images or other materials to us or our Digital Services (“User Generated Content”), you agree not to provide any User Generated Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other users of the Digital Services through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Tell Health that you have the legal right and authorization to provide all User Generated Content to Tell Health for the purposes and Tell Health’s use as set forth herein. Tell Health shall have a royalty-free, irrevocable, transferable right and license to use the User Generated Content in whatever manner Tell Health desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. Tell Health is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content.
Tell Health does not regularly review posted User Generated Content, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content submitted to the Digital Services. You grant Tell Health the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make. Tell Health and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.
You agree to defend, indemnify and hold Tell Health harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Tell Health arising out of any User Generated Content you post or allow to be posted to the Digital Services.
We disclaim any responsibility or liability for copyrighted materials posted on our Digital Services. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
Tell Health respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Tell Health’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the Digital Services
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Digital Services by sending us a notice ("Notice") complying with the following requirements.
COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE DIGITAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE DIGITAL SERVICES WILL BE CORRECTED. THESE DIGITAL SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE RELATED TO THE DIGITAL SERVICES, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE DIGITAL SERVICES.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THESE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, AND LINKED WEBSITES. COMPANY DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACKUP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY COMPANY ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
The content of the Digital Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Tell Health. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. Tell Health does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Digital Services. Reliance on any information appearing on the Digital Services, whether provided by Tell Health, its content providers, its clients, visitors to the Digital Services or others, is solely at your own risk. All information provided by Tell Health, or in connection with any communications supported by Tell Health, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While Tell Health facilitates your selection of, and communications with, Providers, Tell Health does not provide medical services, and the doctor-patient relationship is between you and your Provider.
Tell Health operates subject to state and federal regulations, and the Services may not be available in your state. You represent that you are not a person barred from enrolling for or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Digital Services is limited exclusively to users located in States within the United States where the Services are available. Services are not available to users located outside the United States. Accessing the Digital Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
You agree to fully, accurately, and truthfully create your Tell Health Account (“Account”), including but not limited to your name, mailing address, personal photo, phone number, email address, and password, which become your Tell Health ID and credentials. The Tell Health ID and credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your Tell Health ID or credentials, and for all activities that occur under such Tell Health ID or credentials. You agree to prohibit anyone else from using your Tell Health ID or credentials and agree to immediately notify Tell Health of any actual or suspected unauthorized use of your Tell Health ID or credentials or other security concerns of which you become aware. Your access to the Digital Services may be revoked by Tell Health at any time with or without cause.
You are prohibited from violating or attempting to violate the security of the Digital Services, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Digital Services or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Digital Services, deep-link to any feature or content on the Digital Services, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Digital Services. Tell Health may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Digital Services or any activity being conducted on the Digital Services.
When you use the Digital Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Tell Health may contact you by telephone, mail, or email to verify your Account information. Tell Health may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Digital Services until you provide the information to us as requested.
By providing your cell phone number and email address to Tell Health, you are agreeing to be contacted by or on behalf of Tell Health and our business partners at the email address and the telephone number provided, including emails to your email address and text (SMS) messages to your cell phone and other wireless devices, and the use of an automatic telephone dialing system, artificial voice, and prerecorded messages, to provide you with marketing and promotional materials relating to Tell Health’s products and services, and products and services of the identified business partners. You may opt-out of receiving text (SMS) messages from Tell Health at any time by replying with the word STOP from the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your experience with the service(s) that rely on communications via text (SMS) messaging.
All pages within the Digital Services and any material made available for download are the property of Tell Health, or its licensors or suppliers, as applicable. The Digital Services are protected by United States and international copyright and trademark laws.
Subject to these Terms of Use, Tell Health grants you a revocable, non transferable (except as provided below), personal, nonexclusive license to use the object code version of the Digital Services. All rights not expressly granted to you in these Terms of Use are reserved and retained by Tell Health or its licensors, suppliers, publishers, rights holders, or other content providers. Neither the Digital Services, nor any part of the Digital Services, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Tell Health. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Tell Health without express written consent. You may not use any meta tags or any other “hidden text” utilizing Tell Health name or trademarks without the express written consent of Tell Health. You may not misuse the Digital Services. You may use the Digital Services only as permitted by law. The content of the Digital Services, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through the Digital Services may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized or approved in writing by Tell Health. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, content, or other proprietary information (including, without limitation, images, text, page layout, or form) of Tell Health without our express written consent.
22. No Users Under 18 Years Old
In order to access the Digital Services, you represent and warrant that you are older than 18 years old, or that you have the consent of your parent or legal guardian. If you are under the age of 18, please do not attempt to register with us at the Digital Services or provide any personal information about yourself to us without the consent of your parent or legal guardian. If we learn that we have collected personal information from someone under the age of 18 without verification of parental consent, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18 without parental consent, please contact us at info@tell.health.
With the exception of your electronic medical record, Tell Health retains all right, title, and interest in and to the Digital Services, the Services and any information, products, documentation, software, or other materials on the Digital Services, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the Digital Services licensed by Tell Health (in that case, the license provider retains all right, title, and interest therein). The information available through the Digital Services is the property of Tell Health. You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such information to anyone. Use, reproduction, copying, or redistribution of Tell Health trademarks, service marks, and logos are strictly prohibited without the prior written permission of Tell Health. The immediately foregoing sentence also applies to any third party trademarks, service marks, and logos posted on the Digital Services. Nothing contained on the Digital Services should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right to use any trademarks, service marks, or logos displayed on the Digital Services without the written grant thereof by Tell Health or the third party owner of such trademarks, service marks, or logos. The Digital Services may contain other proprietary notices and copyright information, the terms of which you agree to follow.
Tell Health may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
24. CAN-SPAM Act and Telephone Consumer Protection Act Compliance
Tell Health is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM ACT”) and the Telephone Consumer Protection Act (“TCPA”). You consent to receive text messages from us as set forth in Section 6, above (Consent to Receive Calls and Text Messages). Emails, newsletters, and text messages received from us are intended to fully comply with the CAN-SPAM ACT and the TCPA. In the event you receive an email or text message from us which you do not believe is fully compliant with the CAN-SPAM ACT or the TCPA, please contact us immediately at the address listed below under the section “How to Contact Us.”
You shall not use or permit any of your employees, agents, or affiliates to market, promote, or solicit Tell Health products or services in ways that would violate the CAN-SPAM ACT, the TCPA or any other laws. You shall not: (a) infringe on the rights of others; distribute chain letters or unsolicited bulk electronic mail (“spamming”); (b) propagate computer worms or viruses; (c) use a false identity; (d) attempt to gain unauthorized entry to any site or network; or (e) infringe copyrights, trademarks, or other intellectual property rights.
You further agree to comply with U.S. export laws concerning the transmission of technical data and regulated materials via the Internet. You agree to indemnify and hold Tell Health and its affiliates harmless for any and all acts found or suspected to be in violation hereof. You shall indemnify and hold Tell Health and its affiliates harmless against and from losses, damages, costs, and reasonable attorney fees incurred in defending or resolving any suits brought against Tell Health or any of its affiliates by anyone arising out of any alleged violation of any anti-spamming rules, regulations, laws, statutes. Your Account will be terminated for any of the above infractions.
EXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION:
TELL HEALTH SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF YOUR PROVIDERS. TELL HEALTH AND ANY THIRD PARTIES MENTIONED ON THESE DIGITAL SERVICES ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE DIGITAL SERVICES, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE DIGITAL SERVICES, DIGITAL SERVICES-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE DIGITAL SERVICES AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF TELL HEALTH TO YOU WITH RESPECT TO YOUR USE OF THESE DIGITAL SERVICES IS $500 (FIVE HUNDRED DOLLARS). YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.
Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the App, and their respective affiliates, suppliers, and licensors (collectively, “Third Parties”) are not parties to this Agreement and they do not own and are not responsible for the App. Tell Health, and not any Third Parties, is responsible for addressing any claims raised by you or any third party regarding the App or your use or possession thereof, including claims related to product liability, legal or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable Third Party terms and conditions.
YOU AGREE (I) THE THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APP, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE APP, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE HUNDRED DOLLARS ($500.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE THIRD PARTIES ARISING OUT OF THE APP AND THIS AGREEMENT. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the App or your possession and use of the App infringes a third party’s intellectual property rights, the Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
The App may enable access to Tell Health’s and/or third-party services and websites, including social media sites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Tell Health is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by the App or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Tell Health or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Tell Health or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Tell Health is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Tell Health reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
You may not assign, transfer, or delegate the Terms of Use or any part thereof without Tell Health’s prior written consent. Tell Health may freely transfer, assign, or delegate all or any part of the Terms of Use, and any rights or duties hereunder or thereunder. The Terms of Use will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
These supplemental terms apply to Providers in addition to the other provisions of these Terms of Use. In the event of a conflict between the supplemental terms and any other terms herein, the supplemental terms shall prevail.
To be a healthcare provider using the Digital Services (for purposes of this Section 19, “Provider” or “you”) you must be a licensed physician, nurse practitioner, or healthcare professional contracted with Tell Health or a customer Provider group. Your relationship with the Tell Health users (including, but not limited to, your patients) is directly between you and the patient. The patient will never have a physician-patient relationship with Tell Health. Tell Health does not practice medicine and offers no medical services. As set forth more fully below, Provider is solely responsible for all agreements, consents, notices, and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Provider is solely responsible for all billings and collections from patients and other consumers, and Tell Health shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider.
Tell Health does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Provider, goods, or services offered by Provider, including but not limited to any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Provider’s compliance obligations under law. Provider and Tell Health agree that Tell Health is not providing to customers, patients, or anyone else, medical advice or legal advice.
Provider will use the Digital Services only in accordance with applicable standards of good medical practice. While software products such as the Digital Services can facilitate and improve the quality of service that Provider can offer patients, many factors, including but not limited to the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider shall be solely responsible for its use of the Digital Services, and the provision of medical services to Provider’s patients. In this regard, Provider releases Tell Health and waives any and all potential claims against Tell Health as a result of Provider’s use of the Digital Services, and the provision of services to Provider’s patients.
As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify and hold Tell Health harmless from any claim by or on behalf of any patient of Provider, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a patient, which is brought against Tell Health, regardless of the cause if such claim arises for any reason whatsoever, out of Provider’s use or operation of the Digital Services. To the extent applicable, Provider will obtain Tell Health’s prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of Tell Health or defect in the Digital Services. Tell Health will promptly notify Provider in writing of any claim subject to this indemnification, promptly provide Provider with the information reasonably required for the defense of the same, and grant to Provider exclusive control over its defense and settlement.
If you submit, upload, transmit, or post any consents, notices, advice, recommendations, comments, files, videos, images, or other materials to us or our Digital Services (“Provider Content”) or provide any Provider Content to patients or other consumers, you agree not to provide any Provider Content that (a) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (b) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets, or intellectual property rights of any person or entity, or (c) contains or transmits a virus or any other harmful component. Provider is solely responsible for obtaining all necessary agreements and consents from, and providing all required notices to, patients and other consumers. You agree not to contact other users through unsolicited e-mail, telephone calls, mailings, or any other method of communication. You represent and warrant to Tell Health that you have the legal right and authorization to upload all Provider Content at the Digital Services. Tell Health shall have a royalty-free, irrevocable, transferable right and license to use the Provider Content however Tell Health desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from or sell or distribute such Provider Content or incorporate such Provider Content into any form, medium, or technology throughout the world. Tell Health is and shall be under no obligation: (i) to maintain any Provider Content in confidence; (ii) to pay to you any compensation for any Provider Content; or (iii) to respond to any Provider Content. For the avoidance of doubt, Tell Health shall not have access to any messages exchanged between Providers and patients using the Digital Services, and no such messages or the content thereof shall be considered Provider Content.
Tell Health does not regularly review Provider Content, but does reserve the right (but not the obligation) to monitor and edit or remove any Provider Content submitted to the Digital Services. You grant Tell Health the right to use the name that you submit in connection with any Provider Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Provider Content. You are and shall remain solely responsible for the content of any Provider Content you post to the Digital Services or provide to patients or other consumers. Tell Health and its affiliates take no responsibility and assume no liability for any Provider Content submitted by you or any third party.
We will try to work in good faith to resolve any issue you have with the Digital Services, including without limitation, Products and Services ordered or purchased through the Digital Services, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and Tell Health agree that any dispute, claim, or controversy arising out of or relating in any way to these Terms of Use or your use of the Digital Services, including without limitation, Products and Services ordered or purchased through the Digital Services, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Tell Health are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Tell Health.
If you desire to assert a claim against Tell Health, and you therefore elect to seek arbitration, you must first send to Tell Health, by certified mail, a written notice of your claim (“Notice”). The Notice to Tell Health should be addressed to: Tell Health, Inc., Attn: General Counsel, 222 W. Merchandise Mart Plaza #1230, Chicago, IL 60654 (“Notice Address”). If Tell Health desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Tell Health, must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought (“Demand”). If Tell Health and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Tell Health may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Tell Health or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Tell Health receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope and enforceability of these Terms of Use, including, but not limited to, this arbitration agreement. Unless Tell Health and you agree otherwise, any arbitration hearings will take place in Chicago, IL. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including, but not limited to, the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Tell Health’s last written settlement offer made before an arbitrator was selected (or if Tell Health did not make a settlement offer before an arbitrator was selected), then Tell Health will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND TELL HEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tell Health agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If the arbitration terms and conditions of this Section 20 are found to be unenforceable, then (i) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect, and (ii) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Cook County, Illinois.
We will not be deemed to be in breach of these terms or liable for any breach of these terms or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, or other disaster.
You agree to defend, indemnify, and hold harmless Tell Health and any affiliates from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorney’s fees of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use or misuse of the Digital Services or any information posted on the Digital Services; (ii) your breach of the Terms of Use or Privacy Policy; (iii) the content or subject matter of any information you provide to Tell Health or any customer service agent; or (iv) any negligent or wrongful act or omission by you in your use or misuse of Digital Services, or any information on the Digital Services, including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.
Tell Health reserves the right, in its sole discretion, to terminate your access to all or part of the Digital Services, with or without cause, and with or without notice. Tell Health reserves the right to modify these Terms of Use at any time, effective upon posting. Any use of the Digital Services after such changes will be deemed an acceptance of those changes. You agree to review the Terms of Use each time you access the Digital Services so that you may be aware of any changes to these Terms. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between Tell Health and you pertaining to the subject matter hereof. In its sole discretion, Tell Health may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Digital Services after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on the Digital Services. For purposes of these Terms of Use, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms of Use as a whole.
Copyright/Trademark Information. Copyright ©2019 Tell Health, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Digital Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
