Terms of Service
Updated: November 28th, 2016
NexHealth Provided Services and Acceptance
Nex reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Nex will use reasonable efforts to notify you of any material change in advance of the effective date of any change. Change notices may be communicated by postings at Nex's website, via the Apps, e-mail or otherwise. In any case, you should periodically check the Policies and other Terms of Service for changes. Continued access or use of the Service following any change to the Terms of Service constitutes your acceptance of those changes. The Terms of Service may not otherwise be amended, as they apply to you, except by a written agreement executed by you and Nex. Nex may modify, suspend or terminate the Service (including without limitation, any App), in whole or in part, at any time.
The Service is intended by Nex to be made available only to individuals who (a) are at least 18 years old, or are at least 13 years old and who have the express permission of their parent or guardian and (b) are either a Clinician or Patient who has been specifically identified for onboarding and use of the Service by a Clinical Partner. As used in the Terms of Service: “Clinical Partners” are hospitals, clinics, practices or other medical groups or healthcare systems that have contracted with Nex to permit use of the Service by their respective Clinicians and Patients; “Clinicians” are practitioners, patient advocates or other individuals who (as employees of or contractors to a Clinical Partner) provide healthcare services to Patients; and “Patients” are individual patients of the Clinical Partner who receive medical treatments or other healthcare services from one or more Clinicians. If you do not qualify, then you are prohibited from downloading, accessing, using and registering for the Service. Nex will not collect personally identifiable information from any person who is actually known to us to be under the age of 13. If we become aware that a person under 13 has provided personally identifiable information, Nex will take steps to remove such information and terminate that individual’s account, access and use of the Service. The Clinical Partner, not Nex, is solely responsible for establishing the criteria and determining which of its clinicians and patients will be (and continue to be) eligible to use the Service. Without limiting the foregoing, the Clinical Partner is solely responsible for determining whether the Service will be (and continues to be) clinically appropriate and safe for each Patient. Nex will comply with any instruction from a Clinical Partner to discontinue offering the Service to any of its Clinicians or Patients. In addition, Nex may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time.
Although you may be able to visit the Nex website and download Apps without registering, you will not be able to access or use any valuable aspect of the Service. To complete your application for registration, you need to be specifically identified by your Clinical Partner, who will provide you with the necessary password or other similar credential. The Service may be accessed: by visiting the Nex website directly; or by using an App that is downloaded from Nex (or a Channel Partner), which then communicates with Nex’s web servers. The term “Channel Partner” means any distribution platform operator or other third party who is authorized to make Apps available for distribution pursuant to arrangements with Nex. Currently, the only Channel Partner is Apple Inc. (via the App Store). The term “Business Partners” refers to and includes all Clinical Partners and Channel Partners. Regardless of how you access the Service, to ensure the integrity of the Service, you must complete an account registration process and provide Nex with current, complete and accurate information, as more specifically required by then current registration procedures and operational prompts. If some or all of your registration information has already been provided to Nex by the Clinical Partner, then you will need to review and confirm, complete or correct your information. By way of illustration and not limitation, you may be required to provide the following information in order to establish your account and register for and use the Service: name, address, telephone number, e-mail address, date of birth, username, password and certain preferences and permissions. You are required to maintain and update your registration data from time to time, to ensure that it is always current, complete and accurate. Nex may refuse to accept your application to register for the Service, in its sole discretion. Upon acceptance, Nex will activate the access credentials for your account. You are solely responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. You agree to notify Nex immediately of any unauthorized use of your account or any other breach of security related to the Service.
Fees and Payments
At this time, Patients and Clinicians may access and use the Service with charge, and each of them is responsible for procuring all equipment and services needed to connect to the Service (such as, for example, mobile devices, computers, Internet services and cellular data services).
Not Healthcare Services
Nex does not offer or provide any kind of medical advice, health insurance or other healthcare service, including without limitation, any counseling, testing, medication, procedure or therapy related to the avoidance, prevention, diagnosis or treatment of any acute or chronic illness, disease or condition (collectively, Healthcare Services). The Service is not a substitute for professional Healthcare Services. Always seek the advice of your physician or other qualified healthcare provider with questions regarding any medical condition, or call 911 in an emergency. The Service is intended only as a tool, which can be used to assist Patients and Clinicians in coordinating, managing and communicating about routine Healthcare Services. The Service is not intended for use in any emergency or urgent matter. As a result of its limited role as an intermediary between Patients and Clinicians, Nex has no control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any Healthcare Service. Therefore, you agree to release Nex from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Healthcare Services (including any injuries or disability arising therefrom). To the extent that any Healthcare Services are offered to any Patient, they are provided by the applicable Clinical Partner and its affiliated Clinicians, not Nex. Accordingly, Healthcare Services are not deemed to be within the scope of the Service provided by Nex, and Nex shall have no obligation or liability regarding Healthcare Services. Nex does not recommend or endorse any specific Clinical Partner, Clinician or Healthcare Service.
In connection with the use of the Services and the Apps, Clinical Partners, Clinicians and Patients shall comply with all applicable laws, rules, and regulations, and the rights of third parties. Nex has designed the App to support compliance with the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated under these statutes, including without limitation, the privacy and security regulations (45 C.F.R. 160 and 164) and the transaction and code set regulations (45 C.F.R. 162) (collectively, “HIPAA”), as applicable to the Services and the App. Nex and Clinical Partners hereby agree to the form business associate agreement identified during the Nex registration process (or otherwise negotiated and agreed to by the parties) (in either case, the “BAA”). The BAA is hereby incorporated by reference into this Agreement, and any breach of the BAA is subject to this Agreement.
Service Data and Analytics
The Service collects, stores, processes and analyzes Service Data and produces Analytics. Accordingly, whenever you interact with the Service, a variety of technologies are employed to automatically or passively collect Service Data. The term “Service Data” means all data and information that are provided by you during registration and subsequent use of the Service (including messaging related to Healthcare Services), and all other data and information about you that are otherwise discerned or collected by Nex based on your access and use of the Service. For clarity, Service Data includes, but is not limited to: Personal Data; browser or device type; operating system; time of day; identification of website or App page views; use of particular Service features; geographic location. The term “Analytics” means user profiles and statistics, metrics, abstractions and other analyses that are based on or derived from your use of the Service and Service Data, which are developed in the aggregate with other data, results and measurements or in a manner that does not disclose the identity of any Patient, Clinician or Clinical Partner or any specific Service Data (except in de-identified form). You hereby authorize Nex to use your Service Data and to exploit Analytics in the manner and for the purposes described in these Terms of Service, including without limitation: to use Service Data to communicate with you and your Patients, Clinician(s) and Clinical Partner (as the case may be); to include, copy, disclose, distribute, transmit and display Service Data in communications between a Patient and his or her Clinician (and vice versa) that have been properly initiated via the Service; to access, record, collect, copy, store, process, analyze and use Service Data to provide the Service (including with regard to the use of PHI in messaging between a Patient and his or her Clinician); to develop, improve, extend and test the Service (and underlying technology platforms); to design, develop and produce Analytics; to market and promote Nex and the Service using Analytics (but not identifiable Service Data); and to disclose, distribute and transmit Service Data and/or Analytics to Clinical Partners.
User Rules and Conduct
The Nex website, Apps and all other aspects of the Service are provided only (a) in the case of Patients, for your personal, noncommercial use or (b) in the case of Clinicians, for your use related to providing Healthcare Services (within the scope of your duties for the applicable Clinical Partner) to Patients (whichever applies, the Authorized Use). Any unauthorized use of the Service (including without limitation, accessing any aspect of the Service for which you are not authorized, or any commercial use by you, such as, for example, reselling any App or marketing Healthcare Services) is expressly prohibited. You are solely responsible for all acts or omissions that occur under your account, username or password, including messaging conducted via the Service. As a condition of use, you hereby promise not to use the Service for any purpose that is unlawful, or that is commercial in nature (such as, for example, collecting money, or advertising or promoting any product, service, pyramid scheme or other venture) or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Nex. You agree to abide by all applicable local, state, national and international laws, regulations and rules. By way of example, and not limitation, you agree not to (a) take any action or (b) provide any Service Data using any communications service, survey, feedback, App or other aspect of the Service, in any manner, that: is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another's privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service; infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity; reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public Personal Data about another individual; discovers or reveals any personal information about another individual, including another person's Personal Data or any other information that could be used to track, contact or impersonate that person, unless such information has been provided by that person in any public communication or forum; constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming"), chain letters or any form of lottery or gambling; imposes an unreasonable or disproportionately large load on Nex's computing, storage or communications systems and networks, or attempts to gain unauthorized access to the website, any App or other aspect of the Service (including the underlying technology platform), someone else’s Service Data, accounts, computer systems or networks connected to the Service, through password mining or otherwise; contains software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Nex or any Patient, Clinical Partner or other third party; registers for or creates user accounts by any automated means or under false or misleading pretenses, including by the use of a false, misleading or disguised e-mail address; harvests, scrapes or collects any information from the Service; uses any script, bot or other automated means that only simulates compliance with the Terms of Service or other requirement applicable to the Service; disguises the source of Service Data; or impersonates any person or entity, including any Patient or any employee or representative of Nex or any Business Partner. Nex may, at its sole discretion, immediately suspend or terminate your access to the Service should your conduct fail (or appear to fail) to strictly conform to any provision of this section. Nex has no obligation to monitor the Service or any user’s use thereof. However, Nex reserves the right at any time and without notice to monitor, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement). If you are a Clinician, then you also agree to comply with all terms and conditions of the Service contract between Nex and the Clinical Partner with which you are associated.
You may be able to obtain an App, access the Service and/or communicate with the Service from, and you may be able to link or communicate from the Service to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners. These other applications, devices, platforms and websites are not operated or controlled by Nex, and you agree that Nex is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Any such connection to or from the Service does not constitute or imply any guarantee or endorsement by Nex of that application, device, platform or website or any association with its operators. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.
The Service (including the Site, Apps and underlying technology platforms), and all content, materials, data and other information created by or for Nex (or its affiliates or licensors) and made available via the Service (collectively, Content), are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Nex (and its applicable affiliates and licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Nex, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Service or Content. However, unless the Service states or implements a different restriction, you may download, reproduce or transmit a reasonable number of copies of Content for your Authorized Use; provided, that you retain all copyright and other proprietary notices contained therein. Your systematic retrieval of data or other Content from the Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Nex's express prior written permission. IMPORTANT: If you desire to access or use the Service or Content for any purpose other than Authorized Use, then you must first secure permission from Nex or other owner of that Content. Reproducing, copying or distributing any App, or any Content, or any design elements from the Nex website or any App, for any other purpose is strictly prohibited without Nex's express prior written permission. Attempting to access or use the Service or Content for any purpose not expressly permitted in the Terms of Service is prohibited.
If you provide Nex with any idea, recommendation or other suggestion regarding possible corrections, improvements or extensions related to the Service or Content (collectively, Feedback), in any form or by any means (whether through the Service, or by direct communication (e.g., e-mail) with Nex or any of its officers, directors, employees, representatives, agents or Business Partners), then you: represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information; and acknowledge and agree that Nex is under no obligation of confidentiality, express or implied, with respect to the Feedback; and agree to grant and do hereby grant to Nex and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.
Nex may immediately terminate your access to all or any part of the Service (including without limitation, any App) at any time, with or without cause (including without limitation, upon instruction from the applicable Clinical Partner), with or without notice. If you elect to terminate your registration and account, you may do so at any time by sending an e-mail (that includes your e-mail address) to firstname.lastname@example.org. Upon any termination, all rights and obligations of the parties under the Terms of Service shall cease, and you shall immediately stop accessing and using the Service and Content, except that (a) all obligations that accrued prior to the effective date of termination (including payment obligations, if any) and all remedies for breach of the Terms of Service shall survive, (b) Nex may retain and use Service Data in the manner described herein, but only in aggregated or de-identified form and (c) the provisions of those sections of the Terms of Service that should reasonably be understood to continue in effect shall survive (including without limitations, the sections entitled Not Healthcare Services, Service Data and Analytics, Proprietary Rights, Feedback License, No Warranties, Limitation of Liability and Indemnification). After termination, Nex has no obligation to maintain any Service Data or to forward or preserve any unread or unsent messages to you or to any other user or third party.
THE NEX SERVICE, WEBSITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE SERVICE, SITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NEX AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY SERVICE DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED. USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY HEALTHCARE SERVICES SHALL BE, IF AT ALL, ONLY AS EXPRESSLY AGREED BETWEEN PATIENTS AND THE APPLICABLE CLINICAL PARTNERS.
Limitation of Liability
You agree that Nex (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any unauthorized access to, alteration or use of your account, transmissions or data, or for any material or data sent or received or not sent or received through the Service, except to the extent resulting from Nex’s negligence or willful misconduct. You agree that Nex (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any Patient or Clinician’s threatening, defamatory, obscene, offensive, illegal or other content or conduct or for any Patient or Clinician’s violation of another person’s rights, including rights of publicity or privacy rights. IN NO EVENT SHALL NEX (OR ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) BE LIABLE TO YOU CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, APPS, CONTENT OR OTHER ASPECTS OF THE SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA (DUE TO TECHNOLOGY ERRORS) OR INACCURACY OF DATA, LOSS OF INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO NEX FOR THE SERVICE OR US $100.00, WHICHEVER IS GREATER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY ABOVE, NOTHING IN THE TERMS OF SERVICES IS INTENDED TO LIMIT OR EXCLUDE LIABILITY OF ANY CLINICIAN OR CLINICAL PARTNER AS REGARDING ITS PERFORMANCE OF HEALTHCARE SERVICES. SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU
You hereby expressly consent to the transmission, collection, storage, processing and use of the Analytics and your Service Data within, from and to the United States, in addition to the country where you are located (if not the United States). Nex makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. If you access or use the Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.
Governing Law; Arbitration
A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding its conflicts of law rules. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service. Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or in relation to or in connection with the Terms of Service shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Brooklyn, New York, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of the Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that the Terms of Service and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.
The Terms of Service (including all then current Policies) are the entire agreement between you and Nex with respect to access, use and operation of the Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Nex with respect to the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.
Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with Nex's prior written consent. Nex may subcontract, delegate, assign or otherwise transfer any or all of its rights and obligations hereunder without your consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail.
Copyright and Trademark Notices
The Terms of Service and all Apps and Content provided by Nex are copyright © 2017-2020 Nex, Inc. and/or its licensors or suppliers. Nex is the trademark of Nex. The names and logos of companies, products or services mentioned at the Nex website and in any App may be the trademarks or service marks of their respective owners, and shall not be deemed to create any endorsement or association between Nex and such owners. All rights not expressly granted herein are reserved.
Terms Required by Apple
In the event that you obtain any App through the App Store, offered by Apple, Inc. (Apple), then the following shall apply: Both you and Nex acknowledge that the agreements in the Terms of Service are concluded between you and Nex only, and not with Apple, and that Apple is not responsible for the App; You will only use the App in connection with an Apple device that you own or control; You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, paid for the App; You acknowledge and agree that Nex, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App; You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Nex, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; Both you and Nex acknowledge and agree that, in using the App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; Both you and Nex acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third party beneficiary hereof; and In the event you use the App to provide you with real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
Terms Required by BrainTree
If you have any questions regarding the Terms of Service or your dealings with the Service, please visit www.nexhealth.com
or contact us at:NexHealth, Inc.
2190 Fulton St.
Brooklyn, NY email@example.com