This document is legally binding, so you should read it in its entirety. Essentially, by using this app you agree to the following:
- HexCare can collect data from you. This includes biosensor data, answers to health related questions, and manually entered data like symptoms.
- We can summarize and de-identify the data we collect from you, so we can build a better and more helpful product. You own your identifiable personal data, but we own the anonymized or de-identified version of it.
- You understand and confirm that HexCare is not a licensed medical provider and does not provide medical care or emergency services, unless you choose a licensed TS provider as described below.
- By using the TS, you give informed consent to HexCare providing you with the selected teleservices. Depending on the TS you selected, such consent involves your authorization for the selected services, including the use of certain information and records for delivering the selected service and compliance with applicable law. THIS IS VERY IMPORTANT, AS IT AFFECTS YOUR RIGHTS AND RESPONSIBILITIES UNDER CERTAIN SELECTED TELESERVICES. PLEASE READ BELOW.
YOU AGREE THAT THE SOFTWARE IS NOT INTENDED TO BE USED FOR MEDICAL EMERGENCIES, SELF-DIAGNOSIS OR MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
1.a. Grant of License. Subject to the terms and conditions of this Agreement, HexCare hereby grants to you a personal, non-transferable, non-exclusive, revocable, royalty-free, limited license to install and use the Software on your mobile device for the purposes of inputting responses to surveys and/or participating in a study, program, treatment or services from a designated third-party or a TS provider (collectively, the “Institutional Client”) and/or tracking and analyzing your mobile interactions for purposes of monitoring, predicting, and/or reporting certain health-related factors to such Institutional Client and/or to you and/or your doctor/healthcare provider and/or to a third party you have authorized to receive it.
1.b. Teleservices. Subject to the terms and conditions of this Agreement, and as selected or used by you, HexCare hereby provides the following TS:
i. tele-coaching, which uses unlicensed personnel with graduate degrees to coach/help you clarify and understand the problem or need for change/improvement; this TS is NOT INTENDED TO, NOR DOES, PROVIDE CLINICAL COUNSELING OR THERAPY, MEDICAL ADVICE, DIAGNOSIS, OR MEDICAL TREATMENT.
ii. tele-therapy, which uses licensed therapists to provide clinical counseling and/or psychotherapy to address mental, psychological, behavioral or emotional issues/conditions.
iii. tele-psychiatry, which uses licensed medical doctors specializing in psychiatry to address psychological, physical, mental, behavioral or emotional conditions.
Please note that HexCare may use social workers, nurse practitioners, or other licensed personnel to provide call-based services/teleservices as part of the TS, including without limitation medical referral or emergency call-based services.
1.c. HexCare may change or discontinue, temporarily or permanently, any feature or component of the Software and/or TS at any time without notice.
1.d. By your use of the TS, you hereby give consent to such services being provided to you.
2.b. TS Use Restrictions. You shall refrain from any abusive, dangerous, or threatening behavior when using the TS. You shall not violate any laws in using the TS. HexCare reserves the right to immediately terminate your access to or use of the TS if, in HexCare’s sole discretion, such behavior is exhibited or you violate or attempt to violate any laws or breach this Agreement. HexCare has the right to contact emergency services to the extent HexCare, in its sole discretion, believes that you pose an imminent threat of harm to yourself, to property or to another person.
3. Copying Restrictions. You may copy the Software onto your mobile device, and you may make one (1) copy of the Software for backup or archival purposes. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included by HexCare on any media embodying an authorized copy of the Software originally provided by HexCare. Except as expressly described in this paragraph, you are not permitted to copy the Software.
4. Disclosure Restrictions. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, is proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of, HexCare. If you should gain access to such materials, you shall not disclose them to anyone.
8. Login Information and Access. HexCare may issue to you, or prompt you to provide, a username/password for login to download, access and use the Software. HexCare will protect as confidential any personally identifying information that you may provide to complete the applicable online forms to establish your username/password or account with HexCare (“Account Data”), which Account Data shall continue to be owned by you. You agree to provide, maintain and update true, accurate, current and complete Account Data, and represent that you will not misrepresent your identity or your affiliation with any person or entity. HexCare reserves the right to authenticate any information you provide. You shall be responsible for all use and access of the Software by means of usernames/passwords issued to you. You will notify HexCare promptly of any unauthorized use of your username/password or account or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes. HexCare cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any third party's fraudulent use or misuse of information submitted by you.
9. Feedback. HexCare may ask for your feedback regarding your use and evaluation of the Software, including, without limitation, any problems encountered in the Software or TS (the “Evaluation Data”). If such Evaluation Data is provided to HexCare, it will be deemed and remain the sole property of HexCare, and will not be subject to any obligation of confidence on the part of HexCare. Additionally, HexCare shall have all ownership, right, title and interest in and to the Evaluation Data and any and all intellectual property and proprietary rights thereto and therein. You hereby transfer and assign to HexCare any and all intellectual property rights you may have in and to the Evaluation Data and agree to cooperate with HexCare to perfect HexCare’s sole and exclusive ownership in and title to the Evaluation Data. Complaints can be directed to HexCare at the contact information listed below or on our website: www.hex.care
10. Transfer Restrictions. You may not sublicense, delegate, assign or otherwise transfer this Agreement, the license granted herein, or any other of your rights or obligations under this Agreement, in whole or in part.
11. Export Restrictions. You may not export or re-export any Software except in full compliance with all United States laws and regulations, executive orders and the like, including in particular the Export Administration Regulations of the U.S. Department of Commerce.
13. Enforcement of Terms; Effect of Termination. If you fail to fulfill any of your obligations under this Agreement, HexCare and/or its licensors may pursue all available legal remedies available to them. You agree that HexCare’s licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. Sections 2-5, 6(b) through 6(e), 7(b), 7(c), 9, 10, 11,13, 15 through 25 shall survive any termination or expiration of this Agreement. Upon any termination of this Agreement, your license to use the Software shall terminate and you shall promptly uninstall and remove the Software from the mobile device on which it was installed (and promptly uninstall, delete or destroy your authorized backup or archival copy).
14. U.S. Government Users. (a) If the Software is acquired by or on behalf of civilian agencies of the U.S Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. (b) Pursuant to the foregoing, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by HexCare for end user licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government as permitted by applicable law. The contractor/manufacturer is HexCare, Inc.
15. Assumption of Risk. The Software is designed to provide a designated third-party with health-related information based on your inputs to surveys and mobile interactions, as such interactions are catalogued via your mobile device. The Software and any related data supplied to you by HexCare is not a source of information, and does not provide medical advice. By granting you the right to use the Software, HexCare does not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall HexCare be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any activity you undertake in connection with your use of the Software. As between you and HexCare, you are solely responsible for your use of the Software and your health and medical condition and treatment related thereto. HexCare shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT UNDER TELESERVICES, YOU AGREE THAT: (i) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (ii) HexCare DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS AND IS NOT A HEALTHCARE PROVIDER OR A REFERRAL TO HEALTHCARE PROVIDERS; (iii) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, HexCare WITH RESPECT TO YOUR MEDICAL CONDITION, AS HexCare IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (iv) DATA PROVIDED BY HexCare THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (v) HexCare IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE; (viii) HexCare HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFTWARE; AND, (ix) HexCare IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE.
If you do not agree to the disclaimer below, stop now and do not use the application or our telecoaching services.
In connection with your use of the app and the tele-coaching TS, you'll work with a coach who will provide personal support, encouragement and motivation. The coaches do not provide medical advice. The coaches do not provide professional clinical counseling or other clinical or psychotherapy services. None of the advice provided by the coaches or the application should be considered medical or clinical advice and none of such information is intended as medical or clinical advice. You should always talk to your health care professionals for diagnosis and treatment, including information regarding which drugs or treatment may be appropriate for you. Do not disregard professional medical advice or delay seeking professional advice because of information you have read on our mobile application or received from us. Do not stop taking any medications without speaking to your physician, nurse practitioner, physician assistant, mental health provider or other health care professional. The information provided in or through the app, the website or the coaches, is not intended to be a substitute for professional medical advice, diagnosis or treatment that can be provided by your own doctor/physician, nurse, or any other medical, clinical or healthcare professional.
You agree that HexCare shall not be liable to you or to any third party for any unavailability, modification, suspension or discontinuance of any feature or component of the Software or TS.
To the extent HexCare provides information from, or links or references to, websites operated by third parties, HexCare does not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites does not imply approval or endorsement of the linked website by us. If you decide to access these third party websites, you do so at your own risk. You agree that HexCare has no liability for any damage or loss of any type that is a result of your use of a third party website.
16. Disclaimer of Warranty. HexCare PROVIDES THE SOFTWARE TO YOU "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND, HexCare HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. HexCare MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE. HexCare MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OF THE SOFTWARE, THE RESULTS THEREFROM, OR THE USE OF ANY DATA (INCLUDIING WITHOUT LIMITATION DATA PRODUCED BY THE SOFTWARE) OR INTERACTIONS OF ANY USER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY HexCare EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. HexCare’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. HexCare DOES NOT WARRANT THAT THE SOFTWARE, OR ACCESS THERETO OR USE THEREOF, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY END USER’S REQUIREMENTS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY STANDARDS. HexCare DOES NOT WARRANT THAT ANY FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY SECURITY MEASURE OR SECURITY FEATURE, PROVIDED HEREUNDER WILL BE ERROR-FREE, UNBREAKABLE, UNBREACHABLE, VIRUS FREE, OR INVIOLATE; AND, END USERS ASSUME THE ENTIRE RISK (AND ARE SOLELY RESPONSIBLE) THAT, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY HexCare OR ITS LICENSORS HEREUNDER, THE SOFTWARE AND/OR THE DATA PROCESSED THEREBY MAY BE CORRUPTED, COMPROMISED, INACCESSIBLE OR LOST. THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HexCare SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
Upon request by us, you agree to defend, indemnify and hold HexCare and its partners, affiliates, Use providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your violation of this Agreement; or (b) your violation of any intellectual property or other third party rights or any applicable law in connection with your use of the Software. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us.
Notices to you hereunder shall be sent to the address provided by you when you registered to download and install the Software.
Notices to HexCare shall be sent to:
HexCare, Inc. 6382 La Sierra Ave., Riverside, CA 92505
Each party may change such address upon written notice to the other party.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflicts of laws provision. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to, and hereby agree to submit to, the exclusive jurisdiction and venue in the state courts in San Francisco, CA or any federal court located therein. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained. In the event of a breach, or threatened breach, of this Agreement by you which may harm the intellectual property or proprietary rights of HexCare (or its licensors/suppliers), the parties agree that (i) HexCare may suffer irreparable harm for which monetary damages may be insufficient as a remedy, (ii) HexCare shall be entitled to seek injunctive or other equitable relief, (iii) no bond or surety shall be required to be posted for such relief, and (iv) such relief shall be in addition to any and all other remedies in law or in equity to which HexCare may be entitled. The parties shall seek resolution through binding arbitration using a single arbitrator and the rules promulgated by the American Arbitration Association. The decision of the arbitrator shall be binding on the parties and may be entered into a court of competent jurisdiction. All such arbitration shall be conducted in the jurisdiction set forth above.
20. Complete Agreement; Waiver; Severability. This Agreement contains the complete and entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and HexCare relating to the Software or the terms of its license to you. In the event any term of this Agreement is held by a court of competent jurisdiction to be unenforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions. Upon such determination that any of the terms or provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall survive and be interpreted so as best to reasonably effect the intent of the parties and the parties agree to replace any invalid or unenforceable provisions in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. HexCare's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless such waiver is in writing and signed by HexCare.
21.a. INFORMED CONSENT. IF YOU USE THE TELE-THERAPY OR TELE-PSYCHIATRY SERVICES, YOUR USE OF THOSE SERVICES MUST BE THROUGH INFORMED CONSENT, WHICH YOU MUST GIVE THROUGH THE SOFTWARE OR THROUGH ANOTHER MEANS PROVIDED BY HexCare. INFORMED CONSENT MEANS YOU CONSENT TO THE FOLLOWING:
Informed Consent for Telemedicine Services
Telemedicine involves the use of electronic communications to enable healthcare providers at different locations to share individual patient medical information for the purpose of improving patient care. Providers may include primary care practitioners, specialists, and/or subspecialists. The information may be used for diagnosis, therapy, follow-up and/or education, and may include any of the following:
- Patient medical records
- Output data from biosensors
- Electronic systems used will incorporate network and software security protocols to protect the confidentiality of patient identification and imaging data and will include measures to safeguard the data and to ensure its integrity against intentional or unintentional corruption.
- Improved access to medical care by enabling a patient to remain at a remote site while the physician or healthcare provider consults from a distant/other sites.
- More efficient medical evaluation and management.
- Obtaining expertise of a distant specialist.
Possible Risks: As with any medical procedure, there are potential risks associated with the use of telemedicine. These risks include, but may not be limited to:
- In rare cases, information transmitted may not be sufficient to allow for appropriate medical decision making by the physician and consultant(s);
- Delays in medical evaluation and treatment could occur due to deficiencies or failures of the equipment;
- In rare instances, security protocols could fail, causing a breach of privacy of personal medical information;
- In rare cases, a lack of access to complete medical records may result in adverse drug interactions or allergic reactions or other judgment errors;
You hereby agree to the following:
I understand that the laws that protect privacy and the confidentiality of medical information also apply to telemedicine, and that no information obtained in the use of telemedicine which identifies me will be disclosed to researchers or other entities without my consent.
I understand that I have the right to withhold or withdraw my consent to the use of telemedicine in the course of my care at any time, without affecting my right to future care or treatment.
I understand that I have the right to inspect all information obtained and recorded in the course of a telemedicine interaction, and may receive copies of this information for a reasonable fee.
I understand that a variety of alternative methods of medical care may be available to me, and that I may choose one or more of these at any time. My teleservices healthcare provider has explained the alternatives to my satisfaction.
I understand that telemedicine may involve electronic communication of my personal medical information to other medical or healthcare practitioners who may be located in other areas, including out of state.
I understand that it is my duty to inform my teleservices healthcare provider of electronic interactions regarding my care that I may have with other healthcare providers.
I understand that I may expect the anticipated benefits from the use of telemedicine in my care, but that no results can be guaranteed or assured.
I have read and understand the information provided above regarding telemedicine, have discussed it with my physician or such assistants as may be designated, and all of my questions have been answered to my satisfaction. I hereby give my informed consent for the use of telemedicine in my medical care.
I hereby authorize the selected teleservices healthcare provider to use telemedicine in the course of my diagnosis and treatment.
I understand that have the opportunity to receive a copy of this consent form.
21.b. Consent to Electronic Contracting. You agree that execution of this Agreement may occur by your manifesting your acceptance of it when you installed or used the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.
23. No Joint Venture; Independent Contractors. The parties will at all times be independent contractors and will so represent themselves to all third parties. Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint venturers.
24. Assignment. Any attempted assignment, sublicense, transfer, encumbrance of this Agreement (or of any of your rights or obligations herein) by you shall be void and shall constitute a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of HexCare’s successors and assigns.
26. Payment. It is your responsibility to know if your health insurance coverage includes telemedicine or any of the selected TS. Payment is required and due at the time of service. HexCare is not responsible for the patient being reimbursed by their insurance. Payment is due and payable regardless of insurance or reimbursement.
*** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. ***