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Terms of Use

TERMS OF USE

These Terms of Use (the “Agreement”) is a binding, contract between Benchmark Health, Inc., and our affiliates and subsidiaries (collectively “Benchmark Health,” “us,” “our,” or “we”) and individuals, website users and visitors, and our health care provider customers (collectively “your” or “you”) under which you may use our website and other online services, such as creating an online account with us, incorporating this Agreement (collectively, the “Online Services”).

This Agreement applies solely to your use of our Online Services, including all enhancements, versions, and modifications.

CONDITIONS OF USE

As a condition of your use of the Online Services, you represent and warrant: you are at least the age of legal majority where you live (which is currently eighteen (18) years old in most states), an emancipated minor under state law, or you are at least thirteen (13) years old and have the permission of your parent or guardian who must agree to this Agreement on your behalf.

If you have agreed to allow your unemancipated minor child or a minor child for whom you are legal guardian aged thirteen (13) or over to access the Online Services, you agree that you shall be solely responsible for: (a) the conduct of such minor; (b) monitoring such minor’s access to and use of the Online Services; and (c) the consequences of any use of the Online Services by such minor.

By downloading, accessing, or using the Online Services, you are indicating your: (i) acceptance of, and agreement to be legally bound by, all of the terms and conditions of this Agreement; and (ii) consent to the installation of any software including, but not limited to, scripts, browser plugins, applets, and mobile applications as part of the Online Services on your computer or mobile device.

ONLINE SERVICES DO NOT PROVIDE MEDICAL ADVICE

The Online Services are for informational purposes only and are not a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read through the Online Services.

If you think you may have a medical emergency, call your doctor or 911 immediately.

MODIFICATION OF AGREEMENT

Benchmark Health reserves the right, in its sole and absolute discretion, to modify all or any portion of this Agreement at any time without incurring any liability or obligation whatsoever to you or any other person or entity. If we modify the Agreement, we will post the changes to the Agreement and will indicate the date this Agreement was last revised.

Your continued use of the Online Services after any such changes constitutes your acceptance of, and agreement to be legally bound by, this Agreement, as revised. It is your sole responsibility to regularly check the Agreement to determine if there have been any changes to the Agreement and to review such changes.

PROVIDER OF ONLINE SERVICES

You acknowledge that some or all of the Online Services may be provided by one or more service providers (individually and/or collectively “Service Provider”), where any Service Provider is a third party to this agreement. This agreement is between you and Benchmark Health, not Service Provider.

To use the Online Services, you may also be required to agree to be bound by terms and conditions specified by the Service Provider. You represent and warrant to Benchmark Health that, as a condition of using the Online Services, you will abide by any required terms and conditions specified by the Service Provider.

In addition to other disclaimers and exclusions contained in this Agreement, Benchmark Health expressly disclaims to the maximum extent permitted by law: (i) any and all liability related to the Online Services involving “Content,” as defined in the ONLINE SERVICES AND CONTENT section below, which belongs to Service Provider; (ii) any and all liability related to maintenance or support with respect to the Online Services provided by Service Provider; and (iii) any and all liability related to claims with respect to product liability, intellectual property rights, consumer protection, privacy, or failure to conform to any applicable legal or regulatory requirement involving Service Provider’s conduct or Content.

ONLINE SERVICES AND CONTENT

You acknowledge that content may be made available to you through the Online Services, including, but not limited to, information, comments, data, software (whether applications, scripts, plug-ins, or applets), photographs, graphics, text, sound, images, and other material (“Content”). All Content is owned by Benchmark Health, Service Provider, or another third party.

Content is protected by copyright laws, trademark laws, other intellectual property laws and treaties, in Canada, the United States, and worldwide, and all rights therein are reserved by their respective owners.

You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part, except as expressly allowed by this Agreement or applicable law (including, without limitation, U.S. copyright, trademark, and patent law).

Subject to the terms and conditions of this Agreement, we grant you a non-exclusive, non-transferable, limited right to access, use, and display the Online Services and the materials thereon.

Your use of the Online Services does not grant or transfer to you any ownership or other rights in the Online Services or Content, and except as expressly provided, nothing herein or within the Online Services shall be construed as conferring on you or any other person any license under any of Benchmark Health’s, Service Provider’s, or any third party’s intellectual property rights. Any rights not expressly granted to you in this Agreement are expressly reserved by Benchmark Health.

For greater certainty, you agree that you will not take any action that is inconsistent with Benchmark Health’s ownership of any or all of the Online Services and Content, or with Service Provider’s, or any third party’s ownership of any or all of the Content. You are hereby expressly prohibited from removing any proprietary notice of Benchmark Health, Service Provider, or any third party from any copy of the Online Services or Content.

ONLINE SERVICES DISCLAIMERS

Benchmark Health provides you with access to the Online Services on an “as is” and “as available” basis only, and, to the maximum extent permitted by law, excludes all representations, warranties, conditions, and other terms. Benchmark Health does not warrant that the Online Services or any Content will be uninterrupted or error-free, that defects will be corrected, or that the Online Services or the servers hosting the Online Services will be free of viruses or other harmful components.

The Online Services may be used to facilitate other services such as the provision of health care and medical services, none of which are covered by this Agreement. This Agreement applies only to the Online Services, any other services facilitated by the Online Services are not subject to this Agreement. Benchmark Health makes no representation or warranties as to the quality, lawfulness, or merchantability of such other services, which may be subject to other agreements.

YOUR ACCOUNT

The Online Services, or certain features and/or portions of the Online Services may be password-protected and may require you to complete a registration process to obtain access. When registering to use any such features and/or portions of the Online Services, you agree: (i) that you will provide complete and accurate information about yourself; and (ii) to update such information if it changes.

If you do not provide or update such information, or if we have reasonable grounds to suspect that you have not provided or updated such information, we shall have the right, in our sole and absolute discretion, to disable your username and/or password and prevent you from using the Online Services, or any features or portions of the Online Services.

You agree to be responsible for: (i) the accuracy of all information that you provide to us; (ii) maintaining the confidentiality and security of any passwords or other account identifiers that you choose or that are otherwise assigned to you; and (iii) all activities that occur under such password(s) or account(s). It is your responsibility to keep your username and any password that you register or that is provided to you confidential and secure.

If your username or password is used without your consent or you discover any other breach of security, you agree to immediately notify Benchmark Health or the appropriate Service Provider. We are not responsible for your failure to comply with this clause, or for any delay in shutting down your account after you have reported a breach of security to us. You are solely responsible for all activities which occur under your user account.

RESTRICTIONS

You agree as a condition of using the Online Services, that you will not yourself, or cause any others to, do any of the following:

  • use, copy, modify, download or transfer the Online Services or any component of the Online Services (including, without limitation, the Content), in whole or in part, except as expressly provided in this Agreement;
  • (i) reverse engineer, disassemble, decompile, or translate the Online Services; (ii) attempt to derive the source code of the Online Services; (iii) create any derivative work from the Online Services; and/or (iv) authorize or assist any third party to do any of the foregoing.
  • remove or alter any proprietary notice or legend regarding Benchmark Health’s, or any third party’s, proprietary rights in the Online Services;
  • use the Online Services except in accordance with applicable laws and regulations; and/or
  • use the Online Services: (i) to defraud any third party; (ii) to distribute obscene or other unlawful materials or information; and/or (iii) to disseminate or encourage conduct that could constitute a criminal offence or give rise to civil liability.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ONLINE SERVICES AND CONTENT (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE ONLINE SERVICES AND CONTENT RESIDES WITH YOU.

BENCHMARK HEALTH EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DATA ACCURACY.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BENCHMARK HEALTH MAKES NO REPRESENTATION OR WARRANTY THAT: (I) THE ONLINE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICE AND SOFTWARE; (II) THE ONLINE SERVICES WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR ERROR; (III) THE USE OF THE ONLINE SERVICES, INCLUDING, WITHOUT LIMITATION, THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF ANY VIRUSES, TROJAN HORSES, WORMS, OR OTHER DESTRUCTIVE, INTRUSIVE OR DISRUPTIVE COMPONENTS; (IV) THE TRANSMISSION OF INFORMATION TO AND FROM THE ONLINE SERVICES WILL BE SECURE; (V) THE USE OF THE ONLINE SERVICES WILL NOT INFRINGE THE RIGHTS (INCLUDING, WITHOUT LIMITATION, INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; OR (VI) THE USE OF THE ONLINE SERVICES WILL NOT CAUSE ANY DAMAGE TO YOUR DEVICE, SOFTWARE, OR ELECTRONIC FILES.

ANY AND ALL INFORMATION CONTAINED ON OR WITHIN THE ONLINE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO PROVIDE SPECIFIC ADVICE AND SHOULD NOT BE RELIED UPON IN THAT OR ANY OTHER REGARD.

THE ONLINE SERVICES ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED. THE ONLINE SERVICES AND THE INFORMATION OFFERED THROUGH THEM ARE NOT OFFERED TO ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BENCHMARK HEALTH OR ITS SUPPLIERS, VENDORS OR THIRD PARTY SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS), WHETHER INCURRED DIRECTLY OR INDIRECTLY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE ONLINE SERVICES AND RELATED DATA, INCLUDING WITHOUT LIMITATION ANY DELAY OR INABILITY TO USE THE ONLINE SERVICES OR RELATED DATA, PRODUCTS, MATERIALS, OR OTHER RESOURCES PROVIDED THROUGH THE SERVICES; THE USE OF YOUR ACCOUNT OR ACCOUNT CREDENTIALS; OR ANY DISCLOSURE OF YOUR INFORMATION MADE AT YOUR DIRECTION AND WITH YOUR APPROVAL, OR ANY UNAUTHORIZED ACCESS TO, USE, OR DISCLOSURE OF INFORMATION THAT TAKES PLACE IN CONNECTION WITH YOUR ACCOUNT CREDENTIALS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, AND THE ONLINE SERVICES WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS CLAUSE GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

INDEMNIFICATION

At our request, you agree to defend, indemnify, and hold harmless Benchmark Health, its affiliated companies, and their employees, contractors, officers, and directors, and Service Providers from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses that arise from your use or misuse of the Online Services, violation of these Terms, or violation of any rights of a third party.

Benchmark Health reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the you, in which event you will cooperate in asserting any available defenses.

REFERRING CONSUMERS TO BENCHMARK

Health care providers and their authorized workforce, including agency and contract personnel, under the health care providers’ direct control, and other persons, entities, and organizations may access and use the Online Services to refer a consumer to us. All personal and health information provided may be subject to federal and state privacy laws, such as the federal Health Insurance Portability and Accountability Act (HIPAA).

If you refer consumers to us for services through the referral functionality in the Online Services or through other means, then you are advised of and agree to the following when referring a consumer: (i) you are subject to the applicable privacy laws and understand and comply with your obligations and responsibilities with respect to the applicable privacy laws; (ii) you have obtained all necessary consents and authorizations to provide us any personal and health information; and (iii) you are solely responsible for your uses and disclosures of the personal and health information disclosed to us through the Online Services or otherwise.

You agree to indemnify us against any claims and for all costs and expenses incurred by us, including attorneys’ fees, arising out of your failure to comply with this section.

TEXT MESSAGING TERMS OF USE

You may have the choice to opt-in to receive text messages from Benchmark Health. By consenting to receive text message communications from us, you accept and agree to these Text Messaging Terms of Use. In providing your mobile number and enrolling in text messages, you:

  1. Confirm that you want to be enrolled in text message communications and that you understand that there is a risk that your text messages could be read by unauthorized persons. These electronic communications occur through your mobile carrier, and there is a risk that such messages could be intercepted or viewed by third parties, including others who access your device. Password-protecting mobile device(s) and enabling encryption on your devices, if available, is recommended.
  2. Agree that Benchmark Health may send you recurring text messages at the mobile number you provided to Benchmark Health when inquiring about or receiving our services. You do not need to consent to receive these text messages as a condition of receiving services from us. Message and data rates may apply. Text “STOP” at any time to stop receiving text messages; text “HELP” for help.
  3. Represent that you are 18 years or older, are legally able to enter into agreements on your own behalf and agree to these terms. If you are under the age of 18 years old, your parent or guardian must agree to these terms on your behalf, and by agreeing to receive text messages from us you also represent that you have the permission of your parent or guardian. If you will be receiving or sending texts on behalf of another individual (such as a child, parent or partner), you are also representing that you have the legal right or authority, or have obtained all necessary consents and authorizations, to communicate on behalf of such other person with their receipt of our services on their behalf.

Text message frequency may vary based on the services. Participating carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For any questions about our text program, you can reach us via the contact information provided below.

PRIVACY POLICY

Please read the Benchmark Health Privacy Policy (“Privacy Policy”) carefully to understand how Benchmark Health collects, uses, and discloses information, including personally identifiable information. We may revise and update the Privacy Policy from time to time in our sole discretion. All changes are effective immediately when we post them and apply to our collection, use, and disclosure of information thereafter.

You acknowledge and agree that the Privacy Policy is incorporated by reference into this Agreement, and it is your responsibility to review the Privacy Policy when accessing or using the Online Services so that you are aware of any changes.

GOVERNING LAW

This Agreement is governed by and construed in accordance with the internal laws of the State of Massachusetts without giving effect to any choice or conflict of law provision or rule.

Excluding disputes addressed through arbitration as provided below, you agree that any legal suit, action, or proceeding arising out of or related to this Agreement or the services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Massachusetts in each case located in the City of Boston and Suffolk County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are expressly excluded from this Agreement.

MANDATORY ARBITRATION; JURISDICTION, JURY TRIAL AND CLASS ACTION WAIVER

THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. THIS PROVISION REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BENCHMARK HEALTH.

We are reachable via the contact information at the end of this Agreement to address any concerns you may have regarding your use of the Online Services. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to you initiating a lawsuit or arbitration against us.

Any matter or dispute relating in any way to your use of the Online Services or this Agreement which is not so resolved shall be submitted to binding confidential arbitration as provided below.

Any controversy, dispute, or claim arising out of or relating to this Agreement or the Online Services shall be settled by binding arbitration by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules. Arbitration shall be conducted in Boston, Massachusetts before an arbitrator who is an attorney licensed in Massachusetts. If the parties cannot agree upon an arbitrator, the AAA shall appoint the arbitrator according to AAA's selection procedures.

Judgment upon any award of the arbitrator may be entered in any court having jurisdiction thereof (such judgment to include an award of reasonable attorneys’ fees and expenses, including the expense of arbitration, to the prevailing party). Notwithstanding the foregoing, any party to this Agreement may seek any appropriate equitable relief, including injunction, to which it may be entitled.

The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, except to the extent that disclosure may be legally required of a party, necessary to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a court or other judicial authority.

Notwithstanding the foregoing individual arbitration, that in the event that five (5) or more individuals seek to initiate (or do initiate) arbitration proceedings against us in a coordinated or related manner (e.g., coordination among plaintiffs or their counsel in regard to similar claims), then instead of such arbitrations being administered by AAA, we may elect in our sole discretion to consolidate such arbitrations before an arbitrator mutually agreed-upon by the parties (and terminate any pending administration by AAA), (i) with such arbitrator being a retired federal or state judge and experienced with the subject matter of the arbitration, and (ii) except with respect to administration of the arbitration proceedings, and venue in Boston, Massachusetts, the arbitrator shall follow AAA’s arbitration rules and procedures or such other procedures agreed-upon by the parties.

YOU WAIVE YOUR RIGHT TO A JURY TRIAL IN ANY JUDICIAL PROCEEDING. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT FOR CONSOLIDATED ARBITRATION AS PROVIDED ABOVE, YOU AGREE THAT EACH PARTY TO A DISPUTE HEREUNDER MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.

Unless both you and we agree (and for consolidated arbitration as provided above), no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

ONLINE SERVICES CONTROLLED FROM UNITED STATES

Our Online Services are operated from the United States. We make no representation that content or materials in the Online Services are appropriate or available for use in other jurisdictions. Access to any of the Online Services from jurisdictions where such access is illegal is strictly prohibited. If you choose to access the Online Services from other jurisdictions, you do so at your own risk. You are always responsible for your compliance with applicable laws.

You acknowledge that the Online Services, Content, information, and the underlying technology may be subject to applicable export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Online Services, Content, information, and the underlying technology, as well as end-user, end use, and destination restrictions issued by the United States, and other governments.

By downloading or using the Online Services, you agree to the foregoing and you represent, warrant and covenant that you are not located in, under the control of, or a national or a resident of any country identified in any applicable legislation, regulation, deny order or prohibition list issued by any governmental or regulatory body, and that you will otherwise comply with all applicable export control laws.

TERMINATION

If you breach any provision of this Agreement, you may no longer use the Online Services. We may, in our sole discretion, change, suspend, or terminate, temporarily or permanently, the Online Services or any part thereof or any features at any time, for any reason, without any notice or liability to you or any other entity.

If your permission to use the Online Services is terminated by us for any reason, this Agreement will nevertheless continue to apply and be binding upon you with respect to your prior use of the Online Services and anything relating to or arising from such use. If you are dissatisfied with the Online Services, your sole and exclusive remedy is to discontinue using the Online Services.

SEVERABILITY AND ENTIRE AGREEMENT

If any provision of this Agreement is found by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition, or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.

This Agreement constitutes the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding, or agreement between us relating to your use of the Online Services.