Effective Date: March 30, 2016
(posted at www.starttending.com/privacy
) carefully because they govern your access to and use of services made available by Tending either through our website located at www.starttending.com
”)or through some other websites, applications or other means through which our software or services may become accessible, including any websites, applications, and other services under the control of Tending, whether partial or otherwise (together with the Site, the “Tending Platform
I. Introduction and Eligibility
These Terms apply to all features, contents, applications, information and services we may offer from time to time on the Tending Platform, including our provision of an online or digital platform to enable patients to manage their own health records and collaborate with their care team (collectively, the “Tending Services
”). Please read these Terms carefully before accessing the Tending Platform or using the Tending Services.
. These Terms constitute a legally binding agreement between you and Tending, Inc. , a Delaware corporation (“Tending
,” or “us
” and “users
” means all persons accessing the Tending Platform and users of the Tending Services. You accept these Terms each time you access the Tending Platform or use the Tending Services. If you do not accept these Terms, you must not access the Tending Platform or use the Tending Services.
. The Tending Services are intended solely for persons who are 13 years of age or older who are residents of the United States. Any access to the Tending Platform or use of the Tending Services by anyone under age 13 or anyone who is not a resident of the United States is expressly prohibited. By accessing or using the Tending Services, you represent and warrant that you are 13 years old or older and resident of the United States. Further, if you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access the Tending Platform and use the Tending Services.
Revision to Terms
. We may revise these Terms at any time by posting an updated version on the Site. You should visit this page periodically to review the most current Terms, because you are bound by them if you access the Tending Platform or use the Tending Services. Your continued access to the Tending Platform or use of the Tending Services after a change to these Terms constitutes your binding acceptance of the changes made to these Terms.
The terms “post” and “posting” as used in these Terms will mean the act of submitting, uploading, publishing, displaying, or similar action on the Tending Platform or with the Tending Services.
II. The Tending Services
No Medical Advice
. Tending does not provide medical advice. The Tending Services may help you organize your health records and provide helpful content, but any information and materials available on the Tending Platform or through the Tending Services are for informational and educational purposes only and are not intended to and do not constitute professional advice, diagnosis or treatment. Such information and materials does not substitute for your own judgment or that of your physician, caregiver or other health care provider. The Tending Services are not a substitute for professional medical treatment. You assume full risk and responsibility for the use of any information and materials you obtain from or through the Tending Platform and Tending Services, including your health records. Always seek the advice of your physician or other qualified health care provider regarding a medical condition. Tending does not recommend or endorse any provider of health care or health-related products, items, or services, and does not recommend or endorse any specific tests, procedures, treatments, opinions, products, or other health related services.
Referral to Third-Party Services
. Tending connects seniors and their caregivers with third-party providers of local community services including without limitation transportation, meal delivery and homecare (“Third Party Services
”). We merely act as an intermediary between you and Third Party Services and our responsibilities under these Terms are limited to facilitating the availability of the Tending Platform and, if applicable, facilitating transactions between you and the providers of such Third Party Services. You and the providers of such Third Party Services are responsible for establishing a direct relationship in order to complete payment or with respect to any element of such Third Party Services that Tending does not facilitate through the Tending Services. Tending does not warrant any Third Party Services. Tending is not responsible for any personal injury, damage or harm resulting from your scheduling, use or receipt of Third Party Services. Tending does not employ or control any provider of Third Party Services.
Permission to Use the Tending Services
. We grant you permission to access the Tending Platform and to use the Tending Services, subject to the terms and conditions in these Terms. Through the Tending Services you can post content related to your healthcare or that of a loved one, utilize tools and other features to organize and manage your health records and coordinate your care, and share access to your health records with other persons at your discretion. Your use of the Tending Services is at your own risk, including the risk that content that you or others contribute to your health record is inaccurate or unreliable or that your records may be misused or misappropriated by someone to whom you provide access.
III. Your Account
. In order to access the Tending Platform and use the Tending Services, you must create a Tending account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
Your Login Credentials
. To use the Tending Service, you will log in with your email address and a password of your choosing. Your login information and account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Tending Services and any device that you use to access the Tending Platform and use the Tending Services. You are responsible for safeguarding your password. If you forget your password, you will be asked to create a new one.
You agree to notify us immediately of any breach in secrecy of your login credentials. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Tending by email to firstname.lastname@example.org
. You will be solely responsible for any losses incurred by Tending and others due to any unauthorized use of your account.
Sharing Records with Third Parties
) with, and solicit Records and Personal Information from, your other healthcare providers as authorized by the HIPAA-compliant authorization you must sign with that healthcare provider. If you request Tending to send Records through a verbal authorization, you agree that our documentation of a verbal authorization is equal to a written authorization from you.
Communications and Service Messages
. You agree that we may communicate or provide notices to you in the following ways:
1. By email to the email address you use to log in to your account;
2. Through banner notices, push notifications, in-app messages or other messages delivered on or through the Tending Platform or Services; or
3. Through other means including any telephone number, mobile number, text (SMS) messages or mailing address you choose to provide to us. Standard voice and data charges from your phone carrier may apply to these calls and texts.
You agree to keep any contact information you provide to us up to date. You may adjust your communications preferences in your Tending account settings at any time or by unsubscribing from marketing emails using the link provided at the bottom of our emails.
. By accessing the Tending Platform, using the Tending Services or otherwise providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Tending Services. If we learn of a security breach, we may attempt to notify you electronically by posting a notice on the Tending Platform or by sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notices), please email us at email@example.com
V. Ownership and Use of Records and Content on the Tending Services
. We do not claim ownership rights in the health information, text, files, data, images, photos, video, sounds, links, works of authorship, or any other materials that you, or third parties with your authorization, post to or share via the Tending Services (collectively, “Records
”). We make no representations or warranties with respect to such Records. By posting or requesting Records through the Tending Services, you certify that you have the right to post or request such Records and/or that you have obtained all required consents to post or access such Records (including the provision to Tending of Personal Information about third parties), and you agree to access and use them only as permitted by applicable law. In addition, you acknowledge that certain providers of Records may have the right to revoke the use of Records provided to you under certain circumstances, including without limitation where the wrong Records have been provided, and you agree to delete any such Records upon request. Notwithstanding patients’ rights in their Records, providers or other third parties may have rights to those Records under applicable law.
You are responsible for backing up any Records that you store on the Tending Services. If you close your Tending account or if we terminate your Tending account or you or we discontinue your access to the Tending Platform or use of the Tending Services, we may permanently delete your data from our servers. We have no obligation to return Records to you in such instances.
Tending Content Ownership and Use
. The contents of the Tending Services include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other content (collectively, “Tending Content
”). All Tending Content and the compilation (meaning the collection, arrangement, and assembly) of all Tending Content on the Tending Platform or otherwise within the Tending Services are the sole property of Tending or its licensors and are protected under applicable patent, copyright, trademark and other laws.
License Granted By You to Tending
. By making available any Records on or through the Tending Services, you grant and agree to grant to Tending a perpetual, non-exclusive license to use such Records (a) in order to provide the Tending Services to you; (b) for statistical use (provided that such Records are not personally identifiable); and (c) as necessary to monitor and improve the Tending Services.
Sharing with and Use of Records by Third Parties
. You control who may access your Records. If you share some or all of your Records, then you agree that anyone you have shared such Records with may use that content. When you give others access to your Records through the Tending Services, they may use, reproduce, distribute, display, transmit, and communicate those Records to others. You should only share or give access to your Records to others that you trust to keep those Records confidential.
You Acquire No Ownership of Other Tending Members’ Records
. You understand and agree that if any other Tending member shares or provides you with access to their Records, you will not obtain, as a result of your use of the Tending Services, any right, title, or interest in or to such Records. You agree to maintain the confidentiality and integrity of such shared Records and to use or disclose such Records only as authorized by the owner of such Records. You understand and agree that you will be solely liable for any damages arising out of or related to your breach of these obligations, and you agree to indemnify Tending and its agents for any liabilities or damages arising out of or related to any breach of your duty to maintain the confidentiality and integrity of such shared Records.
License Granted by Tending to You
. We authorize you, subject to these Terms, to access the Tending Platform and to use the Tending Services and the Tending Content solely for your personal and non-commercial purposes, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Tending Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Tending Content on any copy you make of the Tending Content.
. Tending, the Tending logo, and other Tending logos and product and service names are or may be trademarks of Tending, whether or not registered (the “Tending Marks
”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the Tending Marks.
Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display or sell any content appearing on the Tending Platform or through the Tending Services.
VI. Copyright Policy
The Digital Millennium Copyright Act of 1998 (the “DMCA
”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Tending Platform or through the Tending Services infringe your copyright, you (or your agent) may send Tending a “Notification of Claimed Infringement” requesting that the material be removed or that access to it be blocked. The notice must include the following information.
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
2. Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Tending Services are covered by a single notification, a representative list of such works);
3. Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Tending to locate the material on the Tending Services;
4. Your name, address, telephone number, and email address (if available);
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Tending a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright
for details. Notices and counter-notices with respect to the Tending Services should be sent to:
51 Wharf Circle
San Rafael, CA 94903
Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
VII. Payment for Certain Tending Services
Certain Tending Services may be available for a limited time without charge, or for a single-time fee or recurring subscription payments. If you register for Tending Services for a fee, whether one time or recurring, you are responsible for providing a valid credit card number at the time of registration and for updating that credit card or providing a new valid credit card to the extent you subscribe for Tending Services with a recurring subscription fee. You represent and warrant that you are an authorized user of such credit card, and you agree to pay all charges resulting from your registration for such Tending Services at the prices then in effect. You agree that Tending may pass your credit card information and necessary Personal Information to its designated service provider(s) for their use in charging you for Tending Services. All charges for Tending Services are exclusive of sales or other taxes, and you are responsible for payment of any applicable state, local, and city taxes. Tending reserves the right to modify or terminate any feature of the Tending Platform or any Tending Service, to change prices and/or to institute new charges for any subscription service. We will provide reasonable notice to you of any changes in prices for Tending Services for which you pay a recurring subscription fee.
VIII. Suggestions and Submissions
We appreciate and welcome your comments and feedback regarding the Tending Services. Please be advised that if you send us creative ideas, suggestions, inventions or materials (“creative ideas
”), we will:
1. Own, exclusively, all now known or later discovered rights to the creative ideas;
2. Not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any creative ideas; and
3. Be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
IX. Disclaimers, Limitations, and Prohibitions
We do not represent or guarantee the truthfulness, accuracy, or reliability of any content or Records posted by you or any other third party. You accept that any reliance on such materials will be at your own risk. You are solely responsible for the Records you post. Tending does not endorse or accept responsibility for any Records posted by you or other third parties on the Tending Services. You assume all risks associated with your Records, including anyone’s reliance on their quality, accuracy, or reliability. You are solely responsible for any and all fees or costs you may incur to access the Tending Services through any wireless or other communication service.
You agree to use the Tending Services only for their intended purposes. You must use the Tending Services in compliance with all privacy, data protection, intellectual property, and other applicable laws. Without limitation, the following uses of the Tending Services are prohibited. You may not:
1. Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Tending Platform or Tending Services, user accounts, or the technology and equipment supporting the Tending Services;
2. Frame or link to the Tending Services without permission;
3. Use data mining, robots, or other data gathering devices on or through the Tending Services;
4. Post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
5. Post or disclose Personal Information about another person without their consent;
6. Harass, threaten, stalk, abuse, or post objectionable content to another Tending member;
7. Sell, transfer, or assign any of your rights to use the Tending Services to a third party without our express written consent;
8. Use the Tending Services or Tending Content for any commercial purpose or in any manner not permitted by these Terms;
9. Use the Tending Services in an illegal way or to commit an illegal act in relation to the Tending Services or that otherwise results in fines, penalties, and other liability to Tending or others;
10. Access the Tending Services from a jurisdiction where it is illegal or unauthorized; or
11. Encourage or enable any other entity or individual to do any of the above.
X. Account Termination, Removal of Records, and Consequences of Violating These Terms
. We reserve the right to suspend or terminate your account and prevent access to the Tending Services for any reason or no reason, at our sole discretion. We reserve the right to refuse to provide the Tending Services to you in the future.
Removal of Records
. Tending may review and remove any Records at any time for any reason, including without limitation activity which, in Tending’s sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Tending Services.
Your Liability for Breach of these Terms
. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by, arising out of, or related to your breach of these Terms and your use of the Tending Services.
XI. Tending’s Liability
Changes to the Tending Services. We may change, suspend or discontinue any aspect of the Tending Services at any time, including hours of operation or availability of the Tending Services or any feature, without notice or liability.
. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Tending Services. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Tending of all claims, demands, and damages in disputes among users of the Tending Services. You also agree not to involve us in such disputes. Use caution and common sense when using the Tending Services in interactions with third parties.
. We make no representations about accuracy, reliability, completeness, or timeliness of any contents posted on the Tending Platform or within the Tending Services, including Tending Content. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Tending Services. Use the Tending Services at your own risk.
. The Tending Services may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
Released Parties Defined. “Released Parties”
include Tending Medical Group LLC, Tending, Inc., and their affiliates, officers, employees, agents, partners, and licensors.
We make no promises and disclaim all liability of specific results from the use of the Tending Services.
A. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE TENDING SERVICES IS AT YOUR SOLE RISK, AND THE TENDING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE TENDING SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE TENDING SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE TENDING SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TENDING SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE TENDING SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE TENDING SERVICES WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE TENDING SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
B. LIMITATION OF LIABILITY AND INDEMNIFICATION
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TENDING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE TENDING SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON OR THROUGH THE TENDING SERVICES; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE TENDING SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TENDING SERVICES OR YOUR USE OF TENDING CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE LESSER OF $100 OR THE FEES ACTUALLY PAID BY YOU TO THE RELEASED PARTIES FOR THE TENDING SERVICES.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging, arising out of, or related to (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Tending Content, or (iii) your breach of these Terms, including without limitation any breach of your duty to maintain the confidentiality and integrity of shared Records and to use or disclose such shared Records only as authorized by their owner. We will provide notice to you promptly of any such claim, suit, or proceeding.
XII. General Terms
These Terms constitute the entire agreement between you and Tending concerning your use of the Tending Services. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect. The English-language versions of the Terms and incorporated agreements, such as the Privacy Statement, contain the binding terms, and any translations into other languages are for convenience only. If the English-language version conflicts with any translation, the English-language version controls.
XIII. Arbitration, Class Waiver, and Waiver of Jury Trial
These Terms and the relationship between you and Tending will be governed by the laws of the state of California without regard to its conflict of law provisions. You agree to first contact Tending at firstname.lastname@example.org
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Tending Services or these Terms:
YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OR CONSOLIDATED GROUP OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
- YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
51 Wharf Circle
San Rafael, CA 94903