Terms of Service
Updated on July 25, 2017
THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND RUBICONMD INC., THE OPERATOR OF RUBICONMD.COM AND THE SERVICES PROVIDED THROUGH RUBICONMD.COM. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL OF THESE TERMS WITHOUT MODIFICATION, YOU ARE NOT AUTHORIZED TO USE RUBICONMD.COM OR ANY RELATED SERVICE AND MUST IMMEDIATELY DISCONTINUE YOUR USE.
About These Terms
These Terms are a binding legal agreement between you and us and you must agree to all of these Terms in order to use the Platform (capitalized terms are defined below). We provide the Platform to many Users, and for efficiency reasons, we need to ensure that one set of terms applies to every User. We encourage you to read and understand these terms, and to contact us if you have any questions. If you do not agree to all of these Terms without exception, you are not authorized to use the Platform, and must immediately discontinue use. If you are using the Platform on behalf of a company, you represent to us that you are authorized to bind the company, and these Terms shall also apply to the company.
The following terms are used frequently in these Terms. Here is what they mean:
- “Terms” refers to these Terms of Service.
- “you” refers to you, a user of the Platform. If you are using the Platform on behalf of a company, “you” will also refer to that company.
- “we” or “us” refers to RubiconMD, Inc. and our affiliates.
- “Platform” refers to our online platform, accessed through the Site, that connects PCPs to Consultants for remote informational consultations. The Site and any mobile applications provided to access the Platform are part of the Platform.
- “Site” refers to the RubiconMD.com website, including all subdomains.
- “PCP” refers to a User that is a primary care provider (physician or physician extender) that uses the Platform to provide questions to Consultants.
- “Drafter” refers to a non-PCP, non-Consultant User authorized by a PCP to use the Platform on that PCP’s behalf.
- “Consultant” refers to an individual specialist physician who provides information in response to questions provided by PCPs to Consultant through the Platform.
- “User” means any user of the Platform. Users may be PCPs, Drafters, or Consultants.
- “Content” refers to all information, images, lab results, data, text, audio, video and other materials and content available through the Platform.
- “User Content” is Content that a User posts or uploads through the Platform, including information relating to patient cases provided by PCPs and feedback provided by Consultants. User Content that you or any authorized Drafter provides on Your Behalf is “Your Content.”
- “Platform Content” is all Content included on the Platform, including User Content and Our Content.
- “Our Content” is all Content that we provide through the Platform. Our Content does not include User Content. Our Content may include Content that we have licensed from other people or companies.
We reserve the right, in our sole discretion, to modify or replace any part of these Terms at any time, effective upon the date of the change. We will not make changes to these Terms that apply retroactively. In the event of any such change, we will post a notice on the Platform that we have changed these Terms. If you are a User, we may (but are not required to) provide you with notice via the email address that we have on file for you that we have changed these Terms. You and we both understand that sometimes there are issues with email communication. We are not responsible if any email notice gets caught by your SPAM filter and you do not see it, if you have given us the wrong email address (or failed to update your address) or if there are other communications issues that prevent email from reaching you. Therefore, we encourage you to frequently visit this page to monitor any changes. Your continued use of or access to the Platform following the posting of any changes to these Terms constitutes acceptance of those changes.
You agree to provide us with accurate and truthful information during the registration process and you will update us if that information changes. You will have a unique username and password to access the Platform, and you agree not to provide your username and password to anyone. You are responsible for all activity by anyone using usernames and passwords provided to you. Please make sure you follow adequate security procedures to protect your account by safely storing your password, selecting a robust password that cannot be guessed by others and changing it regularly to increase the security. If you notice any unauthorized use of your account or password please notify us immediately.
About The Platform:
The Platform is provided for educational purposes only and is not a substitute for diagnosis, treatment, prescription, or supervision by a specialist physician. If you are a PCP, you acknowledge and agree that we are not a healthcare provider and that the opinions provided by Consultants are not medical diagnoses, treatments, prescriptions, or supervision of any kind. Information provided through the Platform is not a substitute for treatment by a physician or healthcare provider, and you agree that you will not rely on the information provided by Consultants in directing patient care. Consultants may provide their informal thoughts regarding patient care in response to questions asked by PCPs. However, Consultants do not have any contact with the patient and Consultants do not provide diagnoses or direct treatment. Consultants do not provide any supervision or fulfill any supervisory functions. Neither the PCP nor the patient knows the identity of the Consultant and the Consultant does not know the identity of the PCP or the patient. As the Consultant’s information and access to the patient is limited, the information provided is for educational purposes and should not be relied on by the PCP or the patient for diagnosis and/or treatment.
The medical information provided through the Platform is provided as an information resource only, and is not to be used or relied on for any diagnostic or treatment purposes. This information is not intended to be patient education, does not create any patient-physician relationship, and should not be used as a substitute for professional diagnosis and treatment. If you are a PCP, you take full responsibility for all treatment decisions relating to your patients and you are solely responsible for their care. The decisions made following receipt of input through the Platform are at the risk of the PCP, who should determine whether or not to use this input exercising his/her own independent medical judgment, and how to use this input to make his or her own clinical decisions.
You agree to the following:
- You are above 13 years of age. Children 13 years old or below are not permitted to use the Platform.
- All information provided by you through the Platform is accurate and complete to the best of your knowledge.
- You understand and agree that Consultants and PCPs are not our employees or agents. You will not imply or state, directly or indirectly, that you are affiliated with or endorsed by us.
- You understand and agree that we select Consultants to respond to questions based on a variety of factors such as your differential diagnosis, users’ rating, availability, Consultant response rate and/or other similar parameters. We do not have a personal opinion about the Consultants and will not endorse or recommend specific individuals.
- You agree that you will use the Platform only in a manner that complies with all HIPAA, federal, and state privacy and security laws and requirements and with the Business Associate Agreement entered into by and between us and you. In accordance with HIPAA, you will provide only the minimum necessary protected health information and only for permitted uses and disclosures, pursuant to 45 C.F.R. § 164.502. You will only input PHI into fields specifically designated as PHI-permitted fields on the platform. If you receive or provide any protected health information or other patient identifiable information through the Platform in violation of HIPAA or any other federal or state privacy or security laws, you will immediately notify us, and you will immediately return or securely destroy all such information.
- You shall only make legal use of the Platform. You will always comply with all applicable federal and state laws, regulations, and ordinances, including but not limited to the Stark Law, Anti-Kickback Statute, and all applicable federal and state privacy laws.
- You represent and warrant that (i) you are legally authorized to provide Your Content, (ii) Your Content does not infringe, violate or misappropriate the rights (including rights of privacy and publicity and intellectual property rights) of any person or entity, and (iii) Your Content is not pornographic, violent, illegal, infringing of other people’s rights, slanderous or libelous. You acknowledge and agree that we reserve the right to remove any of Your Content that we determine is objectionable in our sole discretion.
- You will not impersonate another person.
- You will not share your login information (username and password) with any other person. Only you will access the Platform through your login information. You will not use anyone else’s login information.
- You may not send unsolicited messages (also known as junk mail or SPAM) or messages that do not correctly identify the sender or alter the attribution of origin in electronic mail messages or postings.
- You will not access the Platform through automated methods.
- You will not attempt or engage in any action that directly or indirectly (i) interferes with the proper working of or (ii) places an unreasonable load on our infrastructure.
If you are a PCP, you also agree to the following:
- You remain solely responsible and liable for treatment and diagnosis of your patients regardless of any information received through the Platform, and regardless of whether you or a Drafter input any of the information that was provided through the Platform.
- You understand and agree that feedback provided by Consultants represents the Consultants’ own opinion, and does not represent us or any other person or entity.
- You will not attempt to discover the identity of any Consultant, nor will you ask any Consultant to reveal his/her identity. You will not reveal your identity or the patient’s identity to the Consultant.
- You will not ask any Consultant to examine or communicate with any patient.
- You will use your independent medical judgment in treating patients, and you will not use any information provided through the Platform to diagnose and treat patients. You understand and agree that information provided by Consultants is for educational purposes only, and you will use it only in that capacity.
- If you determine that specialist treatment is needed, you will refer the patient to a specialist physician who can examine the patient in a clinical setting and provide proper diagnosis and treatment.
- You are solely responsible for Your Content, including but not limited to the accuracy and reliability of the information provided on the Platform by you or any of your or your organization’s authorized Drafters. You agree that you will pay and indemnify us for all losses, liabilities, damages costs and expenses (including attorney’s fees and expenses) that we may incur in connection with any claim or allegation relating to Your Content.
- You will not bill any federal or state healthcare programs for use of the Platform.
- You agree that you will only use the Platform for patients you see through the network, system, group, organization, clinic, plan, or provider that subscribes to the Platform. You will not use the Platform for anyone who is not your patient, including yourself.
- RubiconMD does not guarantee the security of any device used to upload pictures or data to the RubiconMD platform, and users retain full responsibility for ensuring that any data is handled in a manner consistent with HIPAA and all other applicable federal and state laws.
- You will comply with all applicable supervisory requirements separate and apart from your use of the Platform. The Consultants do not provide supervision or fulfill any supervisory function.
If you are a Consultant, you also agree to the following:
- You may only be a Consultant if you hold a valid medical license. If any license that you hold or held in any state is suspended or revoked, or if you are not permitted to practice medicine for any reason, you must immediately notify us and discontinue your use of the Platform.
- You will provide accurate feedback on questions posed to you based on your independent judgment. You will not direct diagnosis and treatment through the Platform, and you will provide only your general thoughts.
- You will not provide supervision through the Platform.
- You understand and agree that you are an independent consultant, and are not our employee or agent.
- You understand and agree that we make no guarantee that you will be selected to respond to any PCP questions.
- You will not attempt to discover the identity of any PCP or patient, nor will you ask any PCP to reveal his/her identity or the identity of the patient.
- You will not ask any PCP to permit you to examine or communicate with any patient, nor will you agree to any request from a PCP to do so.
- You will not share information received from a PCP with any other person or entity.
- You will not bill any federal or state healthcare programs for any services you provide through the Platform.
- You agree that you will not attempt to save, download, store, or otherwise remove any data, including but not limited to photos or attachments, from the RubiconMD platform.
We retain all rights, title and interest (including all intellectual property rights) in and to the Platform and all of Our Content. You shall not engage in any activity that is inconsistent with our ownership. Without limiting the previous sentences, you may not (i) reproduce, create derivative works of, distribute, publicly perform or publicly display the Platform or Platform Content or any portion thereof without our prior written consent, (ii) you may not use any metatags or any other “hidden text” utilizing the name “RubiconMD” without our prior written permission, in our sole discretion, and (iii) you shall not transmit, download, upload, post, sell, rent, license, transfer, disclose, mirror, frame, reverse engineer, decompile, disassemble, or use any aspect of the Platform or any Platform Content, in whole or in part, in any form or by any means.
The Platform Content contains both User Content and Our Content. You understand that we do not have any control over User Content and we do not edit, control, or proofread any User Content. However, we reserve the right to monitor User Content, and may remove any User Content that we determine violates these terms or is otherwise objectionable in our sole discretion and without liability to you.
As between you and us, you always remain the sole owner of Your Content. You agree that we may use Your Content for the purposes for which you provided it. The primary use of Your Content is to display it on the Platform for the purposes for which you provided it (e.g., seeking or providing feedback), and you grant us a nonexclusive right to use, store, display, perform and distribute Your Content for that purpose. We may also use Your Content to review performance, quality and effectiveness of the Platform, to perform data analysis, and we may take screen shots or frame certain areas of the Site for marketing and promotional purposes, and you agree that we and our service providers may use Your Content in this way. We also retain full ownership rights over Protected Health Information de-identified in accordance with HIPAA.
You represent to us that you have the right to provide us with Your Content and any other information you provide to us, and that Your Content is not illegal.
We are not responsible for storing or backing up Your Content. We are not responsible if Your Content is lost for any reason.
We may (but we are not required to) monitor Your Content. We may refuse to post, or we may remove, any of Your Content that we believe is illegal, infringing other people’s rights, objectionable as determined by us, inadequate to meet the requirements of our services, or that does not comply with these Terms.
You may use Platform Content only for purposes of using and interacting with the Platform in compliance with these terms. If you are a Consultant, you may use Content provided to you by PCPs to provide feedback. If you are a PCP, you may use Content provided to you by Consultants for educational purposes.
All trademarks, trade names and logos appearing on the Site are owned by us or licensed by us. You agree that you will not use them in any manner whatsoever without our prior consent, in our sole discretion.
If you choose to provide us with any comments, suggestions, ideas or other feedback, you agree that we have an unrestricted right to use it, and you will not receive any compensation.
Either you or we may terminate our relationship at any time, with or without cause. f you wish to terminate your account, you may do by emailing us at email@example.com. It may take up to 3 business days before cancellation will take effect. We may terminate your right to use the Platform at any time by providing you with notice through the e-mail address we have on file at the time.
Termination of our relationship will terminate any rights and license we have provided to you in these Terms. In such event, you must immediately discontinue using the Platform. Any sections of these Terms which by their nature survive termination, will survive.
We have no obligation to store any of Your Content after termination. You agree that we will not have any obligation to store Your Content after termination of your account, and we shall have the right to permanently delete Your Content.
Defense and Indemnification
You are responsible for your actions; you agree you will pay and indemnify us for all losses, liabilities, damages costs and expenses (including attorney’s fees and expenses) that we may incur based on your breach of these Terms or any other action or inaction by you. If we (or any of our employees, directors, agents or affiliates, or any Users) get sued or any other claim is made against us (or them) related to anything you do (including any breach by you of these Terms), you agree that you will you will defend us against the suit or claim if we request it.
You understand and agree that we do not provide any warranties with respect to the Platform (including all Platform Content). THE PLATFORM (INCLUDING ALL PLATFORM CONTENT) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. You understand that we do not guarantee any particular response time, but will use reasonable efforts to select a Consultant that will answer questions in a timely manner.
Without limiting the previous paragraph, you understand and agree that all feedback provided by consultants is provided “as is”, without any warranty, and we make no warranty that any feedback is accurate or that any feedback may be relied upon. While we hope that you will find the Consultants’ input informative and educational, neither we nor the Consultants make any representations or warranties with respect to any information offered or provided within or through the content of their responses or submissions regarding treatment of medical conditions, action, or application of medication.
Limitations of Liability
Our liability to you is limited to the fullest extent permitted by law. If you are a PCP or a Drafter, you also agree that the Consultants’ liability to you and your patients is limited to the fullest extent permitted by law. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE AS WELL AS OUR LICENSORS AND CONSULTANTS, ARE NOT LIABLE (UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR DAMAGE TO REAL, TANGIBLE OR INTANGIBLE PROPERTY. IN ADDITION, YOU AGREE THAT IN EVENT THAT ANY OF THE FOREGOING LIMITATIONS ARE NOT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS OR CONSULTANTS BE LIABLE FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (i) AMOUNTS PAID BY YOU OR PAYABLE TO YOU FOR USE OF THE PLATFORM IN THE PREVIOUS THREE MONTHS OR (i) TEN U.S. DOLLARS ($10.00).
Without limiting the previous sentence, if you are a PCP or a Drafter, you agree that under no circumstances, as a result of your use of input received from the Consultant through the Platform, will the Consultant be liable to you or to any other person for any damages or harm, including all direct, indirect, special, incidental, exemplary, consequential or other damages under any legal theory. Consultants and their employers shall have absolutely no liability for (i) any loss or injury caused, in whole or in part, by feedback provided by Consultants through the Platform, including any errors, omissions, or inaccuracies in such feedback and/or any decision made or action taken or not taken in reliance upon such feedback.
Limitation on Time to Bring an Action
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Platform (including any information provided through the Platform) brought by you must be filed within one (1) year after such claim or cause of action arose or be forever barred.
These terms shall be governed by, and construed in accordance with, the substantive laws of the State of New York, without regard to the choice of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Agreement To Arbitrate Claims
Waiver of Jury Trial
By agreeing to these Terms, both you and we are waiving the right to a jury trial on any disputes that may arise.
Waiver of Right To Pursue Class Action Claims
You agree to only resolve disputes with us on an individual basis, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity.
REPORTING VIOLATIONS OF THESE TERMS
Please report violations of these Terms by sending an e-mail to firstname.lastname@example.org.
DISPUTES BETWEEN USERS
If you have a dispute with another User, that dispute is between you and that User. Even if we help facilitate resolution of the dispute, we are not responsible for the dispute and do not have any liability related to the dispute. You hereby release us from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “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.”
GENERAL LEGAL TERMS
You and we agree to be bound by the following general terms:
- These Terms are the entire agreement between you and us.
- Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given upon receipt, or, if by e-mail, when receipt is electronically confirmed. You agree to notice via e-mail at the address you have provided. You can contact us by email at email@example.com.
- Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Waivers are effective only if in writing and signed by us.
- These terms may not be amended unless in writing and signed by us.
- If any provision of these Terms is found by a court of competent jurisdiction to be invalid, such provision will be limited or eliminated to the minimum extent necessary, and the other provisions of these Terms remain in full force and effect.
- The Platform is not designed for use outside the United States. If you use the Platform outside the United States, you do so at your own risk, and you are solely responsible for compliance with applicable laws relating to the use of the Platform. You are not permitted to use the Platform in any jurisdiction where it is not permitted.
- These Terms apply solely to the Platform. Your access or use of any third party site is governed by the terms applicable to such third party site. If the Platform contains a link to a third party site, that does not imply an endorsement by us of such site or the provider.
- You will not transfer any of your rights or obligations under these Terms to anyone else without our prior written consent. All of our rights and obligations under these Terms are freely assignable by us.
- A printed version of these Terms and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.