Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THESE SERVICES. BY USING THE SERVICES OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF. PLEASE REVIEW SECTION 10 CLOSELY, AS IT CONTAINS A BINDING ARBITRATION PROCESS FOR RESOLVING DISPUTES INSTEAD OF USING THE COURT PROCESS.
This Terms of Services forms a legal Agreement (“TOS Agreement”) between RockApp, LLC, a Delaware corporation (“Us”, “We”, or “RockApp”), and You (“You” or “Customer”) concerning Your access to and use of the services offered through a web-based and/or mobile application, which will require You to create an account in order to use a RockApp service (collectively, “Patient Portal”).
Your use of the Patient Portal constitutes Your acceptance of this TOS Agreement to be bound by the terms and conditions of this TOS Agreement.
1) RockApp Software Services.
This TOS Agreement provides Customer with access to and the right to use the Patient Portal as set forth in this TOS Agreement. The Patient Portal makes certain health (including telehealth) care services (“Platform Services”) available to You. Before using the Patient Portal, You will need to register an account and create login information. Because Your account might contain personally identifiable information (“PII”) and/or personal health information (“PHI”), which You should protect, You will need to safeguard Your user ID, password, and other log-on/log-in information and maintain them in a secure location that is inaccessible to anyone else. Do not share them with anyone unless You are certain You want that person to have access to Your PII or PHI. In the event that You suspect or know that Your user account has been used without Your permission, or if You know of any other breach of security, You agree to immediately notify RockApp via email at firstname.lastname@example.org.
By using the Patient Portal, You expressly agree to these Terms and Conditions. If You do not agree to these Terms and Conditions, You should immediately cease all use of and access to the Patient Portal and any of the Platform Services.
RockApp may, in its sole discretion and without prior notice to You, revise this TOS Agreement at any time. Amended material terms will be added to the Patient Portal. Each time You access the Patient Portal, You will need to acknowledge Your TOS Agreement to the amended terms as a condition of continuing to use the Patient Portal. If You do not agree to the terms of the amended TOS Agreement, Your only remedy is to discontinue Your use of the Patient Portal. Discontinuing Your use of the Patient Portal will result in Your termination of this TOS Agreement. Amended Terms and Conditions will be effective as of the Effective Date of the TOS Agreement. By accessing or using the Patient Portal after such changes are posted You signify Your agreement and consent to all previous changes.
2) Use Of Services.
a. RockApp’s Responsibilities. RockApp shall use commercially reasonable efforts to provide the Patient Portal.
b. Customer Responsibilities.
i. Customer will not make the Patient Portal available to anyone other than its authorized users and in all cases solely to access the Patient Portal for the exclusive benefit of Customer in compliance with the terms of this TOS Agreement. Customer is responsible for the compliance with this TOS Agreement by its agents or authorized people or entities. By registering an account on the Patient Portal, You represent and warrant the following: (i) You are at least eighteen (18) years of age, (ii) You have the legal ability and authority to enter into this TOS Agreement, (iii) the information You have provided to RockApp during Your registration is accurate and complete, (iv) You will comply with any and all laws applicable to Your use of the Patient Portal, (v) You will not interfere with any third party’s use and enjoyment of the Patient Portal, (vi) You will not interfere with or disrupt RockApp’s or its third party vendors’ security measures, (vii) if any information You provide to RockApp becomes inaccurate, incomplete or otherwise false or misleading, You will immediately notify RockApp, (viii) You agree that You are responsible for payment for any service or product provided on or ordered through the Patient Portal on Your behalf, which may not be covered by any insurance company or government or private payer, and (ix) You are accessing the Patient Portal for Yourself, or for a person (including but not limited to a child under the age of eighteen) for whom you are the legal guardian.
ROCKAPP IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF ROCKAPP.
ii. Restrictions and Responsibilities. Customer may only use the Patient Portal for Customer’s own use for Customer or a person for whom Customer is legally responsible and may not (i) sell, resell, rent, or lease the Patient Portal or otherwise use the Patient Portal for any other user’s purpose or benefit, (ii) reverse engineer the Services; (iii) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights); (iv) interfere with or disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Patient Portal or their related systems or networks; (vi) modify, copy the Patient Portal, or create derivative works based on the Patient Portal or any part, feature, function or user interface thereof; (vii) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Patient Portal or remove or modify any proprietary marking or restrictive legends in the Patient Portal; (viii) use the Patient Portal in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN SPAM); or (ix) access the Patient Portal to build a competitive product or service. Customer is solely responsible for Customer Information (defined below), must use commercially reasonable efforts to prevent unauthorized access to the Platform, must notify RockApp promptly of any such unauthorized access, and may use the Services only in accordance with RockApp’s scope of authorization and applicable law.
iii. Clinical Support Information; Information Exchange. Customer agrees that the information and materials available through the Patient Portal are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis and/or treatment, which may only be rendered or provided by Customer healthcare provider. Information may be placed in the Patient Portal by RockApp and by third parties beyond RockApp’s control. RockApp is not responsible for the accuracy or completeness of information available from or through the Patient Portal. Customer assumes full risk and responsibility for the use of information Customer obtains from or through the Patient Portal, and neither RockApp nor any of RockApp’s licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information. RockApp does not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials in the Patient Portal relating to any such products, items or services is not an endorsement or recommendation of them. As to all information and materials, Customer agrees Customer will make an independent determination of the suitability for Customer’s use. RockApp and its suppliers and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Patient Portal for any purpose.
c. Additional Terms.
i. Content. Customer may upload or submit content, files and information to the Patient Portal that is informational, educational, or promotional in nature (“Content”). As between RockApp and Customer, all Content belongs to Customer, and Customer hereby grants RockApp a non-exclusive irrevocable, perpetual, royalty-free license to display, store, distribute, share, modify, and otherwise use such Content for purposes providing the Patient Portal under this TOS Agreement.
ii. Warranties. Customer represents and warrants to RockApp that:
A. Any Content submitted to the Patient Portal does not violate any copyright, trade secret, privacy or other third party right;
B. Customer will not submit any Content that is untrue, defamatory, harmful to any person, or violates HIPAA Privacy Rules, state or federal laws on patient privacy; and
C. Any patient testimonial submitted by Customer is accurate and has the patient’s consent.
iii. Reminders and SMS Messages. Customer agrees that by registering for the Patient Portal’ services, Customer authorizes Customer’s healthcare providers to use the Patient Portal to send email, fax, phone call, or SMS reminders about upcoming appointments, special offers, and upcoming events. RockApp is not responsible for any text messaging or data transmission fees. If Customer provides a cellular phone number and agrees to receive communications though the Patient Portal, Customer specifically authorizes RockApp to send text messages or calls to such number. Customer represents and warrants it has the authority to grant such authorization. Customer is not required to consent to receive text messages or calls as a condition of using the Patient Portal and may opt out of such messages through the Patient Portal.
iv. Reviews & Opinions. RockApp does not endorse, validate as accurate, or necessarily agree with any of the reviews, links, and user-generated content from users or customers on the Patient Portal. RockApp reserves the right to refuse to publish any patient review provided by Customer. RockApp may attempt to send automated or human-based alerts when reviews are provided on third party websites, but RockApp does not guarantee the accuracy, completeness, or timeliness of such alerts.
4) Warranty/Services Level Agreement/Disclaimers.
a. Availability. RockApp will make commercially reasonable efforts to maintain the maximum uptime of its Patient Portal.
b. Compliance with Laws. Customer represents and warrants to RockApp that Customer will comply with all applicable laws regarding Customer’s use of the Patient Portal.
c. No Medical Advice Provided by RockApp. RockApp provides a technology platform that facilitates Customer in accessing and communicating with medical providers for medical treatment and services. RockApp is NOT to be used to access emergency medical care or treatment. RockApp is not a medical provider and does not provide medical advice, provide medical or diagnostic services, or prescribe medication. RockApp is not an insurance company or an insurance provider of any type. RockApp is not a pharmacy or prescription fulfillment center or warehouse.
d. Customer’s Assumption of Risk. Customer assumes all risks associated with Customer’s use of the Patient Portal. Neither RockApp nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer arising from any use of the Patient Portal.
e. DISCLAIMERS. ROCKAPP DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE PLATFORM SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ROCKAPP TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE PLATFORM SERVICES, ROCKAPP DOES NOT GUARANTEE THAT THE PLATFORM SERVICES CANNOT BE COMPROMISED.
5) Proprietary Rights.
Ownership of Intellectual Property and Reservation of Rights by RockApp. The software, workflow processes, user interface, designs, know-how and other technologies provided by RockApp as part of the Patient Portal are the proprietary property of RockApp and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain exclusively and at all times with RockApp. RockApp is the sole and exclusive owner of the Patient Portal, including any and all copyright, patent, trademark, trade secret, and other ownership and intellectual property rights, in and to the Patient Portal and any related materials and documentation. No title or ownership of the Patient Portal or any portion thereof is or will be transferred to You even if You accept the TOS Agreement. You agree not to change or delete any copyright or proprietary notice related to materials downloaded from the Patient Portal. RockApp reserves all rights unless expressly granted in this TOS Agreement.
6) Limits On Liability.
a. No Indirect Damage. RockApp is not liable for any indirect, special, or consequential damages (including, without limitation, costs of delay, loss of data or information, lost profits or revenues or loss of anticipated cost savings) arising under or related to this TOS Agreement or the Services, even if advised of the possibility of such loss or damage.
b. Limit. RockApp’s total liability for all damages arising under or related to this TOS Agreement (in contract, tort, or otherwise) does not exceed the actual amount paid by Customer within the six-month (6-month) period preceding the event which gave rise to the claim. Notwithstanding any statute of limitations or other similar law, any claim by Customer against RockApp must be brought within twelve (12) months of the event which gave rise to the claim, and if it is not brought within such time period then such claim is expressly waived by Customer.
7) Term, Termination, And Return of Data.
a. Term. This TOS Agreement continues until all services are terminated with or without cause by RockApp, Customer, or Customer’s healthcare provider. Notwithstanding the foregoing, RockApp may terminate Customer’s access to and use of the Patient Portal, at its sole discretion, at any time and without notice to you. You may terminate this TOS Agreement by deleting your account on the Plaforms. RockApp may immediately suspend your access to the Patient Portal and remove your information if we in good faith believe that You may have violated a law or any term of this TOS Agreement. RockApp may try to contact you in advance, but we are not required to do so. RockApp may also terminate this TOS Agreement if Customer breaches any material term of the TOS Agreement.
b. Return of Data. RockApp will have no obligation to provide Customer Information to Customer upon termination of this TOS Agreement. Notwithstanding the foregoing, RockApp will retain Customer Information, if any is stored on the Patient Portal, for sixty (60) days from such termination and RockApp may provide Customer access to such information upon Customer’s written request.
c. Customer Actions upon Termination. Upon termination, Customer must pay any unpaid fees and destroy all RockApp property in Customer’s possession. Customer, upon RockApp’s request, will confirm in writing that it has complied with this requirement.
d. Suspension or Termination for Violation of Law or the TOS Agreement. RockApp may immediately suspend or terminate the Services and remove applicable Customer Information or Content if it in good faith believes that, as part of using the Platform Services, Customer may have violated any applicable law or any term of this TOS Agreement. RockApp may try to contact Customer in advance, but it is not required to do so.
a. General Indemnity. To the extent allowed by applicable law, Customer must indemnify, defend (at RockApp’s option), and hold harmless RockApp against all third-party claims (including, without limitation, by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:
i. the use of the Services by Customer;
ii. any advice, diagnosis, treatment, referral, or other medical or healthcare service provided by Customer;
iii. Customer’s breach of any term in this TOS Agreement;
iv. any unauthorized use, access, or distribution of the Services by Customer; or
v. violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.
9) Governing Law And Arbitration.
a. Governing Law. This TOS Agreement and any action related thereto is governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware (without regard to conflicts of law principles).
b. General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this TOS Agreement, Customer’s use of or access to the Services (Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this TOS Agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party. The arbitration will be held in New Castle County, Delaware.
c. Optional Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone or online and be solely based on written submissions, the specific manner of which to be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
d. Enforcement. Notwithstanding Sections 10(b) and 10(c), RockApp may bring an action to enforce its intellectual property or other proprietary rights in any court of competent jurisdiction.
e. Equitable Relief. Notwithstanding anything above, RockApp may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this TOS Agreement.
f. Prohibition Of Class And Representative Actions. Each party may bring claims against the other only on an individual party basis, and not as a plaintiff or class member in any purported class or representative action or proceeding. the arbitrator may not consolidate or join more than one party’s claims, and may not otherwise preside over any form of a consolidated, class or representative proceeding. If this class action and representative action waiver provision is held to be unenforceable, then sections 10.b and 10.c shall also be unenforceable.
10) Other Terms.
a. No Solicitation or Hiring of Employees. Customer acknowledges that RockApp invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under this TOS Agreement. Customer agrees that for the full term of this TOS Agreement, and for one (1) year after its termination Customer will not solicit or employ in any capacity, whether as a direct employee, independent contractor, or representative of another company providing similar services to Customer as RockApp, any person employed by RockApp at any time during the term of this TOS Agreement whose duties involve providing the Services, developing product, or conducting or managing sales, whether for Customer or other RockApp customers.
b. Consent to Electronic Notice, Communications and Transactions. For purposes of messages and notices about the Services (including, without limitation, collections and payments issues), RockApp may send email notices to the email address associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), RockApp may send notices to the postal address provided by Customer. Customer agrees it shall provide, and at all times maintain, current and complete contact information to and with RockApp. RockApp shall have no liability associated with Customer’s failure to maintain accurate contact information within the Services or its failure to review any emails or in-service notices. Customer will have the ability to enter into agreements, authorizations, consents, and applications; make referrals; order lab tests; prescribe medications; or engage in other transactions electronically. Customer agrees that its electronic submissions via the Services in connection with such activities constitute its agreement to be bound by such agreements and transactions and applies to all records relating to such transactions. Customer represents and warrants that it has the authority to take such actions.
c. Entire Agreement and Changes. This TOS Agreement and the Customer agreement to use the Patient Portal and Platform Services constitute the entire agreement between the parties and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this TOS Agreement. No representation, promise, or inducement not included in this TOS Agreement is binding. No modification or waiver of any term of this TOS Agreement is effective unless signed by both parties. Customer agrees that the Convention on Contracts for the International Sale of Goods does not apply to this TOS Agreement. Notwithstanding the foregoing, RockApp may modify this TOS Agreement by posting modified Terms of Services on the RockApp website. Customer agrees that by continuing to use the Services after posting of the modified Terms of Services, Customer agrees to be bound by the changes.
d. Feedback. If Customer provides feedback or suggestions about the Services, then RockApp (and those it allows to use its technology) may use such information without obligation to Customer.
e. Beta Features. If Customer is invited to access any beta features of the Services or Customer accesses any beta features of the Services, Customer acknowledges that: (a) such features have not been made commercially available by RockApp; (b) such features may not operate properly, be in final form, or be fully functional; (c) such features may contain errors, design flaws, or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) RockApp is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Services. These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.
f. Assignment. RockApp may assign or transfer this TOS Agreement (or its rights and/or obligations thereunder) to any third party without Customer’s consent. Customer may not assign or transfer this TOS Agreement or any other agreement Customer has with RockApp to any third party without the prior written consent of RockApp.
g. Electronic Notice. For purposes of messages and notices about the Services (including without limitation, collections and payments issues), RockApp may send email notices to the email addresses associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), RockApp may send notices to the postal address provided by Customer. RockApp shall have no liability associated with Customer’s failure to maintain accurate and current contact information within the Services or its failure to review any emails or in-service notices.
h. Enforceability. If a court or other judicial tribunal having jurisdiction over the parties determines that any term of this TOS Agreement is invalid or unenforceable, all other terms remain in full force and effect.
i. Other Agreements Control. If there is an inconsistency between this TOS Agreement and any other agreement Customer has with RockApp, the other TOS Agreement shall prevail.
j. Survival of Terms. All terms survive termination of this TOS Agreement that by their nature survive for a party to assert its rights and receive the protections of this TOS Agreement.
k. Customer Name. RockApp may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of RockApp, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to RockApp.