StreaMD Patient Terms and Conditions (updated March 1, 2019)

 

INTRODUCTION
The services that StreaMD (hereinafter “StreaMD,” “we,” “our,” and “us”) provides to you are subject to the terms and conditions set forth herein (“Terms and Conditions”), which govern your access to and use of our opt-in SMS chatbot service and common carrier services we provide (collectively the “Services”).  By enrolling in StreaMD Services, you agree to be bound by the following Terms and Conditions.

By enrolling in the StreaMD Service (texting “JOIN”) you consent to receive mobile text messages and are entering into a legally binding agreement with StreaMD.  If you do not accept this Terms and Conditions, now or in the future, please stop your use immediately, in which case any continuing access to and/or use of our Services is unauthorized.

StreaMD is a chatbot program that sends automated and pre-programed SMS text messages to your cell phone before and after your surgery. StreaMD has artificial intelligence and natural language processing capabilities that allow you to receive additional information on pre-operative and post-operative topics. The automated SMS responses to your input are derived from a database that contains information generated from multiple different sources. Please be advised that we do not guarantee the completeness or accuracy of any StreaMD content, including any output generated in connection with your use of the StreaMD chatbot. You acknowledge and agree that you use and rely on the StreaMD chatbot at your own risk, and that StreaMD will not be liable for any errors or inaccuracies.

You understand and agree that 1) the information in the messages is standardized and not specific to your individual treatment, 2) the StreaMD chatbot and related services do not provide medical advice, diagnosis, treatment, or prescriptions, either through the chatbot, the website, or any other services; and 3) this chatbot should not be used in medical emergencies and does not support emergency calls. The services and content are not a substitute for professional medical advice, diagnosis, treatment or prescriptions. Please seek medical advice and treatment only from a healthcare provider. In case of a medical emergency, call your country’s emergency number immediately. Never disregard professional medical advice or delay in seeking it because of something you have read through the services. You understand that the services we provide is for information purposes only; it is not medical advice. We have no responsibility to take any medically related action or provide medical advice in response to any information you provide through our services.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND STREAMD WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.

CHANGES

StreaMD may, at any time, for any reason, make changes to the Services and/or modify this Terms and Conditions in its sole discretion.  We may make such changes and/or modifications to the terms and conditions contained herein and your continued use of the Service following changes and/or modifications will constitute your acceptance of such changes and/or modifications.  StreaMD will provide a notice of such changes by texting the updated Terms of Conditions on the Service and changing the ‘Last Updated’ date listed above. We may also provide you additional forms of notice of modifications and/or updates as appropriate under the circumstances.  If you do not agree to the changes and/or modifications, you must immediately reply “STOP” using your mobile number.  Your continued access to and/or use of the Service after such posting constitutes your consent to be bound by such Terms and Conditions, as amended.

SCOPE OF USE

Eligibility and Use of Service.  By signing up for the Service, you are confirming that you are over the age of thirteen (13).  You understand that we will send mobile text messages using automated technology. The automated messages are sent at pre-programmed, designated intervals before and after surgery. The information in the messages is standardized and not specific to your individual treatment.  Our Service is compatible with major wireless carriers (including but not limited to AT&T, Verizon Wireless, Sprint, T-Mobile®, U.S. Cellular®) (collectively “Telecommunication Provider”).  StreaMD authenticates the end user through an elective enrollment process. By providing StreaMD with your mobile number, you give StreaMD permission to send text-messages to the mobile number provided when you enroll.  By texting “JOIN” to the number on the StreaMD enrollment card, you agree to participate in the StreaMD text-messaging service and authenticate that you are the owner and subscriber for this mobile number.  Standard message and data rates may apply. Messaging frequency varies based on the type surgery and physician instructions.

Availability.  StreaMD retains the right, in our sole discretion, to deny service and/or access to and/or use of the Service to anyone at any time and for any reason. While we use reasonable efforts to keep the Service accessible, the Service may be unavailable from time to time. You understand and agree that there may be interruptions to the Service due to circumstances both within StreaMD’s control (e.g., routine maintenance) and outside of our control.  You acknowledge and agree that StreaMD will not be liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your network operator. You acknowledge and agree that use of the Service is at your own risk, including without limitation the risk that you might be exposed to content that is inaccurate and/or objectionable. The Service may be modified, updated, suspended or discontinued at any time without notice and/or liability.

Communication.  By participating in StreaMD Services, you understand and agree to have your mobile number stored on a cloud server. Your mobile number is linked to the name of your surgeon, date of your surgery, and type of surgery. Our cloud server is enabled with encryption services at rest and in transit and it meets the rules and regulations of the Health Insurance Portability and Accountability Act.  When you access and/or use the Service, you are communicating with us electronically, and you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Your Privacy.  To protect the privacy of its enrollees, information in the text messages are never associated with your personal information including your name, date of birth, social security number or any other demographic information.  Data obtained from you in connection with the Service may include your mobile number, your carrier’s name, the date, time and content of your messages and other information you provide to us in connection with the Service. We may use this information to contact you and to provide the Services you request from us. You can find more information about how we use and store content in our Privacy Policy.  

You understand that the content of the SMS messages is transmitted through your third party Telecommunication Provider before reaching your cell phone and that you provide responses in your own discretion. Please be aware that responses are not monitored.  StreaMD does not control and/or endorse the Telecommunication Provider and is not responsible for any Telecommunication Provider services. Please be aware that information within the text message may be stored on the Telecommunication Provider’s servers or databases, which may not have the same encryption measures as StreaMD’s server. Telecommunication Providers may not access the information on their servers on a regular basis, but rather on a random or infrequent basis as necessary for their performance analysis; therefore, they do not qualify as a business associate to StreaMD or the covering entity by which your surgeon is associated.  You will need to make your own independent judgment regarding your interaction with the Telecommunication Provider at your own risk.

Your Responsibilities.  You may not use our Service for any illegal and/or unauthorized purpose and/or to violate any federal, state or international laws in your jurisdiction (including but not limited to copyright laws), code of conduct and/or other guidelines which may be applicable to the Service.  You must not transmit any materials through the Service that contain any harmful component, any worms and/or viruses or any code of a destructive nature. You may not use the Service in any manner that could damage, disable, overburden, and/or impair the Service and/or interfere with any other party's use of the Service. You may not access all or any part of the Service in order to build a product or service that competes with our Service.  You shall not obtain or attempt to obtain any data through any means from the Service, except if we intend to provide and/or make it available to you. You will not attempt to do any of the following: access data not intended for you, monitoring the Service for data gathering purposes in an effort to track usage, aggregate, and/or similar information, and/or interfere with the Service to any user in any manner. A breach and/or violation of this Terms and Conditions will result in an immediate termination of your access to and use of our Service.

General Conditions.  We reserve the right to refuse Service to anyone for any reason at any time. You understand that messages may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks and/or devices.  The Internet/telecommunications platform is an open network and provides no inherent protection for confidential information. You accept these risks by enrolling in StreaMD. StreaMD is not a covered entity or a business associate to any health care organizations. As a conduit for the delivery of generic instructions, StreaMD does not sign a business associate agreement with your physician.  

Contacting Treating Physician.  You understand that E-mail and/or text messages to StreaMD must not be the primary means of communication with your surgeon and your surgeon will not see your text responses. In particular, you must contact your surgeon by telephone or in person about critical or time-sensitive issues. StreaMD is an SMS chatbot service that is an independent business entity from your treating physician. Therefore, all information you provide to StreaMD is kept private and will not be shared with your physician. Conversely, your physician does not share any of your personal information with StreaMD.

Information Accuracy.  Occasionally there may be information on the Service that contain typographical errors, inaccuracies, and/or omissions that may relate to descriptions, instructions and availability. The material on this Service is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting your physician.  Any reliance on the material received through the Service is at your own risk. We reserve the right to: (i) correct any errors, inaccuracies, and/or omissions; and/or (ii) make changes to content, descriptions, specifications, and/or other information without obligation to issue any notice of such changes, except as prohibited by law. To protect the patient-physician relationship, no emergency, time sensitive, life threatening, emergent or urgent health care information will be delivered to you via StreaMD.  If you have a medical question, call your physician’s office or if you are experiencing a medical emergency, call 911.

CHARGES

StreaMD does not charge a fee for your use of the Service and we are not responsible for any charges from your Telecommunication Provider that may result from providing this Service.  It is your responsibility to check with your individual carrier, as standard message and data rates from your Telecommunication Provider may apply. All charges are billed by and payable to your Telecommunication Provider related thereto.  StreaMD assumes no responsibility for charges incurred by signing up for this Service. Any text messaging fees that you incur will be billed and/or determined based on your individual plan with the Telecommunication Provider.

SERVICE USE OUTSIDE DEFINED AREA

The Services are directed to those individuals and entities located in the United States. It is not directed to any person or entity in any jurisdiction where (by reason of nationality, residence, citizenship or otherwise) the publication or availability of the Service and its content are unavailable or otherwise contrary to local laws or regulations. If this applies to you, you are not authorized to access and/or use the Service. Those who choose to access the Service from other locations do so at their own risk and are responsible for compliance with applicable local laws.

PROPRIETARY RIGHTS AND LICENSES

Ownership.  The Service, any content on the Service and the infrastructure used to provide the Service are proprietary to StreaMD, our affiliates and other content providers. By using the Service and accepting this Terms and Conditions (a) StreaMD grants you a limited, personal, nontransferable, nonexclusive, revocable right to access and/or use the Service pursuant to this Terms and Conditions and to any additional terms and policies set forth by StreaMD; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell and/or re-sell any content, and/or services obtained from and/or through the Service without the express permission of StreaMD.

Reservation of Rights.  The materials and content through the Service (“Content”) are copyrighted and are protected by United States and international copyright laws and treaty provisions.  StreaMD owns, controls, lawfully uses and/or licenses the Content on the Service. StreaMD’s name and logo may not be copied, imitated and/or used, without our prior written permission.  Subject to the limited rights expressly granted hereunder, StreaMD and/or its third party providers reserve all right, title and interest in and to the services and content, including all related worldwide intellectual property rights.  No rights are granted to you hereunder other than as expressly set forth herein.

Feedback. Please keep in mind that we do not seek any unsolicited ideas and/or materials for the Service. If you provide us (in a direct mail, email and/or otherwise) with any feedback, suggestions, improvements, enhancements, recommendations and/or feature requests relating to the Service (“Feedback”), then you further grant to StreaMD a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate any such Feedback and you agree you will not be compensated for such Feedback.  StreaMD has no obligations to review any Feedback and may use and/or redistribute Feedback for any purpose without restriction in its sole and absolute discretion.

TERMINATION

Our Termination.  If you violate or if we have grounds to suspect that you violated this Terms and Conditions and/or other use parameters included on the Service, we may refuse access to and/or use of the Service.  We also reserve the right, in our sole and absolute discretion, to terminate your access to the Service and unsubscribe you, without cause and/or without notice and without liability. In the event you misuse the Service by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, we will consider your access as having been acquired by fraud and/or misrepresentation and will terminate your access immediately.  In such event, StreaMD retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by you.

Opt Out.  Content in the messages is automated and may not be exactly applicable to you. If at any time you feel the content of the messages does not apply to you and/or you wish to discontinue use of the Service for any reason, please respond “STOP” from your mobile number.  Data message rates may apply.

INDEMNIFICATION AND WAIVER

You shall indemnify, defend and hold harmless StreaMD, its officers, agents, employees, contractors, subcontractors, suppliers and representatives from and against any and all claims, demands, proceedings, losses, costs, damages, awards, fees, expenses, or liabilities of any nature (“Claim”) arising out of and/or in relation to (i) your violation of any law and/or the rights of a third party including but not limited to the ‘Telephone Consumer Protection Act’ or any rule or regulation thereunder resulting from the receipt of text messages to the mobile number you provided; (ii) use of the Service, content and/or any breach of this Terms and Conditions by you; and/or (iii) your intentional misconduct and/or negligence.  You shall give prompt notice to StreaMD upon your receipt of notice of any Claim against you which might give rise to a claim against StreaMD.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

THE SERVICE AND ANY CONTENT, ARE PROVIDED BY STREAMD TO YOU ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, ALL OF WHICH STREAMD EXPRESSLY DISCLAIMS.  WITHOUT LIMITING THE FOREGOING, STREAMD AND ITS LICENSORS MAKE NO WARRANTY THAT (A) THE SERVICE, CONTENT OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND/OR (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR CONTENT WILL BE EFFECTIVE, ACCURATE OR RELIABLE. STREAMD IS NOT LIABLE OR OTHERWISE RESPONSIBLE FOR ANY FAILURE AND/OR DELAY IN UPDATING THE SERVICE AND/OR ANY CONTENT.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STREAMD OR THROUGH AND/OR FROM THE USE OF OUR SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

LIMITATION OF LIABILITY

YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR OWN RISK.  IN NO EVENT SHALL STREAMD, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF STREAMD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY STREAMD ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

IN THE EVENT YOU ARE DISSATISFIED WITH THE SERVICE, RELATED SERVICES OR HAVE ANY OTHER GRIEVANCE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE THE RIGHT TO DISCONTINUE ACCESS TO AND/OR USE OF THE SERVICE.  STREAMD’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICE AND/OR CONTENT IS LIMITED TO THE LESSER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO STREAMD IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE LIABILITY, OR (II) FIFTY DOLLARS ($50.00).

 

NO PROFESSIONAL ADVICE

The content and information provided and made available through the Service is intended to be a general information resource regarding the matters covered, and may not be tailored to your specific circumstance.  StreaMD limits the content of the SMS messages to include only generic information regarding the basic surgical instructions that are freely described in the preoperative and postoperative instructions. StreaMD does not, will not and cannot refer, recommend and/or endorse any specific medical service, procedures, tests, products, opinions, instructions, demonstrations and/or other information that are available on the Service.  The content is not intended to be a substitute for professional medical advice, diagnosis and/or treatment. Always abide by your physician’s direct verbal and/or written instructions, over the Content in the text-messages and seek the advice of your physician and/or other qualified health provider with any questions you may have regarding a medical condition.  StreaMD is an SMS bhatbot service only and does not provide health care services.  Never disregard professional medical advice or delay in seeking it because of information you have received through the Service.

 

RESOLUTION OF DISPUTES

Disputes.  We want to address your concerns without needing formal legal case.  Before filing a claim against StreaMD, you agree to try to resolve the dispute informally by contacting us at info@mystreamd.com.  We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days of submission, you and/or StreaMD agree to resolve any claims related to this Terms of Use through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or you opt out as described below.

Opt-Out.  You can opt-out and decline this agreement to arbitrate by contacting StreaMD within thirty (30) day after the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Terms of Use).  You must write us at StreaMD, Attn: Opt-Out Arbitration, 1709 Paulina St. Apt. 1R Chicago, IL 60612.  If you opt out, neither you nor StreaMD can require the other to participate in an arbitration proceeding.


Arbitration Procedures.  Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described above, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the ‘American Arbitration Association’.  Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Cook County, Illinois or any other location we agree to. Each party shall bear the burden of its own attorneys fees incurred in connection with any arbitration proceedings.

Exceptions to Agreement to Arbitrate.   Either you and/or StreaMD may assert claims, if they qualify, in small claims court in Cook County, Illinois. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use and/or abuse of the Service, breach of StreaMD’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described herein.

Judicial forum for disputes. In the event that the agreement to arbitrate is found not to apply to you and/or your claim, you and StreaMD agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Cook County, Illinois.  Both you and StreaMD consent to the foregoing venue and jurisdiction.

 

MISCELLANEOUS
If any provision or term of this Terms and Conditions shall become and/or be declared illegal, invalid and/or unenforceable for any reason whatsoever, such term or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them.  This Terms and Conditions shall be governed in all respects by the laws of the State of Illinois, without reference to its choice of law rules. If an applicable law is in conflict with any part of this Terms and Conditions, this Terms and Conditions will be deemed modified to conform to the law and/or the other provisions will not be affected by any such modification.  No waiver by either you and/or StreaMD of any breach and/or default and/or failure to exercise any right allowed under this Terms and Conditions is a waiver of any preceding and/or subsequent breach and/or default and/or a waiver and/or forfeiture of any similar and/or future rights under this Terms and Conditions.

Contact us: If you would like to request additional information regarding this Terms and Conditions, please contact us at info@mystreamd.com.