IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911.
THE SERVICE MIGHT NOT BE APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS.
Biograph is a technology company that makes available to individuals who register as users of the Service (“Users”) certain products and services designed for use in tracking and managing users’ health and wellness and relationships with their healthcare providers. In connection with the Service, Biograph also provides certain technological and other administrative support for Biograph Providers of California, a California medical group (the “Medical Group”) that employs or contracts with physicians and allied health professionals (“Providers”).
In some cases, the Service may not be the most appropriate way for you to track or manage your health and wellness, or provide information to, communicate with or seek medical care and treatment from a healthcare provider. For example, certain medical conditions may require an in-person procedure or a healthcare provider other than your Provider, or your Provider may determine that your diagnosis and/or treatment require an in-person office visit or are otherwise not appropriately addressed through use of the Service. In such a case, you may receive notification that you will be unable to use the Service for the particular issue you submitted and providing additional information regarding next steps.
Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. In order to use the Service, you will be required to review and agree to a Patient Agreement and Consent (the “Patient Consent”) that will be provided to you by the Medical Group. You agree that the Patient Consent is entered into with the Medical Group, but that Biograph is a third party beneficiary of the Patient Consent and has the right to enforce it against you.
You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service. You also have a duty to provide truthful, accurate and complete information in any forms or other communications you submit to or through the Service. Biograph reserves the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.
Biograph is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations and amendments from time to time (collectively, “HIPAA”), however, the Medical Group may be a “covered entity” and, solely in its role providing administrative services to the Medical Group, Biograph may be a “business associate” of the Medical Group. Therefore, the Medical Group and, solely in its role as a business associate, Biograph, may be subject to certain provisions of HIPAA with respect to “protected health information,” as defined under HIPAA, that you provide to the Medical Group (“PHI”). PHI does not include information that has been de-identified in accordance with HIPAA, and does not include information that you submit to Biograph for purposes other than connecting you with the Medical Group or Providers.
Under HIPAA, a “covered entity” is required to provide their patients a Notice of Privacy Practices that describes how the covered entity uses and discloses PHI. As a result, if the Medical Group determines that it is a covered entity under HIPAA, the Medical Group will adopt and separately provide to you a HIPAA Notice of Privacy Practices that describes how the Medical Group may use or disclose your PHI (the “Medical Group Notice of Privacy Practices”).
HIPAA also requires a covered entity to obtain a patient authorization that satisfies certain requirements in order for the covered entity or its business associates to use or disclose PHI in certain ways. In order to ensure that the Medical Group and Biograph are able to effectively provide their respective services to you and that you are able to utilize the full functionality of the Service, the Medical Group and/or Biograph may need to use or disclose your PHI in ways that would require the Medical Group to obtain an authorization under HIPAA. As a result, if the Medical Group determines that it is a covered entity under HIPAA, the Medical Group will obtain from you a patient authorization (a “Patient Authorization”) that authorizes the Medical Group and Biograph to use and disclose your PHI in certain ways that are described in the Patient Authorization.
THE SERVICE PROVIDES YOU ELECTRONIC ACCESS TO CERTAIN INFORMATION FROM YOUR MEDICAL RECORDS CREATED AND MAINTAINED BY MEDICAL GROUP AS PART OF YOUR CARE. THIS INFORMATION MAY INCLUDE, AMONG OTHER THINGS, YOUR LAB AND GENETIC TEST RESULTS, DIAGNOSES AND TREATMENT PLANS, AND OTHER HEALTH INFORMATION, AND IS ACCESSIBLE AND VISIBLE THROUGH THE APPLICATION AND CERTAIN OTHER COMPONENTS OF THE SERVICE. IF SOMEONE ACCESSES YOUR COMPUTER OR OTHER DEVICE, THEY MAY BE ABLE TO ACCESS THE APPLICATION OR OTHER PARTS OF THE SERVICE THROUGH WHICH YOUR INFORMATION, INCLUDING HEALTH INFORMATION, MAY BE VISIBLE. BY USING THE SERVICE, YOU ARE AGREEING TO ALLOW INFORMATION FROM YOUR MEDICAL RECORDS, INCLUDING HEALTH INFORMATION, TO BE CONTAINED IN AND ACCESSIBLE THROUGH THE PLATFORM. IT IS YOUR RESPONSIBILITY TO SECURE YOUR MOBILE DEVICES AND PREVENT UNAUTHORIZED ACCESS TO THE APPLICATION THROUGH YOUR MOBILE OR OTHER DEVICE.
You are obligated to register and set up an account in the Platform in order to access the Service, and the Service is available only to Users who have registered and have been granted accounts with usernames and passwords. You agree to accurately maintain and update any information about yourself that you have provided to Biograph and/or the Medical Group or its Providers. If you do not keep such information current, or fail to submit truthful, accurate and complete information, or Biograph has reasonable grounds to suspect as much, Biograph has the right to suspend or terminate your account and your use of the Service. You also agree to immediately notify Biograph of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Service by emailing Biograph at firstname.lastname@example.org. In addition, you agree to keep confidential your username and password and to exit from your User account at the end of each session. Biograph explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time.
When establishing an account, you will be required to provide a username and password that will be used as your login for your account. To help protect the privacy of data you transmit through the Service, where personally identifiable information is requested, we also use technology designed to encrypt the information that you input before it is sent to us using Secure Sockets Layer (SSL) technology or similar encryption technology. In addition, Biograph takes steps to protect the User data we collect against unauthorized access. However, you should keep in mind that the Service and our services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control. In addition, persons with access to your computer, phone, or other mobile or other devices may be able to access the Service and information about you contained in the Service. It is your responsibility to secure and prevent unauthorized physical access to your computer, phone and other devices, and to protect the confidentiality of your username and password.
You must exercise caution, good sense, and sound judgment in using the Service. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you. Biograph may investigate any alleged or suspected violations and if a criminal violation is suspected, Biograph will cooperate with law enforcement agencies in their investigations.
Subject to the limitations described below, any information you transmit to Biograph via the Service, whether by direct entry, submission, email or otherwise, including data, questions, comments, forum communications, or suggestions (collectively, “Submissions”), will, to the extent permitted under applicable law, be treated as non-confidential and non-proprietary and will become the property of Biograph. You hereby irrevocably assign (and agree to assign) to Biograph, free and clear of any restriction or encumbrances, all of your rights, title and interest in and to the Submission, including, without limitation, all copyrights, rights in patents, rights in trade secrets, and all rights incidental, subsidiary, ancillary, or allied thereto (including, without limitation, all derivative rights) in and to the Submission. To the extent the assignment granted above fails for any reason, you hereby grant to Biograph an exclusive, perpetual, irrevocable, royalty-free, worldwide license under your intellectual property rights, with the right to sublicense to third parties the right, to make, access, practice, sell, offer for sale, export, import, copy, use, modify, prepare derivative works from, distribute, publicly display, publicly perform, and otherwise exploit in any manner those Submissions with respect to which the foregoing assignment shall have failed. You agree to execute any documents and take any other actions as may reasonably be necessary, or as Biograph may reasonably request, to evidence, perfect, maintain and enforce Biograph’s ownership of or license to any such Submissions. In addition to the foregoing, Biograph shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose that Biograph deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.
Certain Submissions you make may contain health information, which may be subject to HIPAA or related state-specific privacy laws and regulations. With respect to any such health information that is PHI, Biograph’s rights under this section with respect to the use or disclosure of such PHI will be limited as and to the extent required under HIPAA or an applicable Patient Authorization.
Any use or attempted use of the Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, (iii) that could interfere with any other party’s use and enjoyment of the Service, (iv) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means, (v) to access systems, data, or information not intended by Biograph to be made accessible to a user, (vi) to obtain any materials, or information through any means not intentionally made available by Biograph, (vii) to reverse engineer, disassemble or decompile any section or technology on the Service, or (viii) any use other than the business purpose for which it was intended, is prohibited.
In addition, in connection with your use of the Service, you agree you will not: (a) upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another’s right of privacy or publicity; (b) create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Biograph representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements); (d) upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another; (e) delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; (f) use the Service’s communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text); (g) upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise; (h) violate any applicable local, state, national or international law; (i) upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party; (j) delete or revise any material posted by any other person or entity; (k) manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology; (l) probe, scan, test the vulnerability of or breach the authentication measures of, the Service or any related networks or systems; (m) register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so; (n) harvest or otherwise collect information about others, including email addresses; (o) use any robot, spider, scraper, or other automated or manual means to access the Service, or copy any content or information on the Service; or (p) assist or permit any person in engaging in any of these activities.
Biograph reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a User's access and/or account. Biograph may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.
Parties other than Biograph, including Medical Group and Providers (collectively, “Third-Parties”) provide services or sell products through the Service, and Biograph may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third-Parties (“Third-Party Goods and Services”). Your use of any Third-Party Goods and any interactions with Third-Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third-Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third-Parties or any Third-Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information.
You agree that Biograph shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of any Third-Party Goods and Services or your interactions with any Third-Parties. In the event of any dispute between you and any Third-Party, any other User or any other entity or individual, you understand and agree that Biograph is under no obligation to become involved in such dispute, and you hereby release and indemnify Biograph, its affiliates and their respective contractors, and its directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “Biograph Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein. If you are a California resident, you waive California Civil Code Section 1542, which states: “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.”
Certain of Biograph’s shareholders, directors, officers, employees or agents (collectively, “Biograph Owners and Personnel”) have a financial interest in the Medical Group and/or are also Providers, and may profit from your use of the Medical Group and its products and services. Biograph and certain Biograph Owners and Personnel may also have a financial interest in other Third-Parties, and/or may profit from the sale of Third-Party Goods and Services to you.
Content and other information contained on the Service is provided by Biograph as a convenience. Users relying on Content or other information from the Service do so at their own risk.
THE SERVICE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF THE SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. BIOGRAPH TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO THE SERVICE, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICE OR THE PLATFORM (INCLUDING ANY CONSULTATIONS OR OTHER SERVICES YOU MAY RECEIVE FROM THE MEDICAL GROUP OR ITS PROVIDERS). BIOGRAPH DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICE. BIOGRAPH DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, OR ANY ADVERSE INCIDENT.
IN NO EVENT SHALL BIOGRAPH BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PERSONAL INJURY OR WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST OR CORRUPTED DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE OR ANY SERVICES PERFORMED BY THE MEDICAL GROUP OR ITS PROVIDER(S) (INCLUDING CLAIMS OF MEDICAL MALPRACTICE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIOGRAPH ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BIOGRAPH SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000.
BIOGRAPH SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY YOUR USE, MISUSE OR INABILITY TO USE THE PLATFORM, THE CONTENT OR THE SERVICE. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM, SERVICE OR CONTENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM, SERVICE OR CONTENT IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE PLATFORM, SERVICE OR CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
Payment of arbitration costs will be governed by the AAA’s fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Biograph will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Biograph also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.
The arbitration shall be conducted in San Francisco, California, except that, in the event San Francisco, California is not within 100 miles of your residence, the arbitration may be conducted within 100 miles of your residence, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and/or (c) any claim for equitable relief; then you and Biograph agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in San Francisco, California, and both parties consent to exclusive jurisdiction and venue in such courts. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise.
THE PARTIES AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
This Service is controlled and operated by Biograph from our offices within California. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited.