PLEASE READ THIS AGREEMENT CAREFULLY, AND DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR USE THE TOUCHCARE ASSIST SERVICES IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS AGREEMENT IS LEGALLY BINDING, AND GOVERNS YOUR ACCESS TO AND USE OF THE TOUCHCARE ASSIST SERVICES. BY CLICKING “I AGREE” OR BY OTHERWISE ACCESSING OR USING THE SERVICES DESCRIBED HEREIN, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
THIS TOUCHCARE ASSIST USER AGREEMENT (“Agreement”) is entered into by and between TouchCare LLC d/b/a TouchCare Assist, a Delaware limited liability company (“TouchCare”), and You (“You”), an individual authorized by TouchCare to access the Services (as defined herein). Each of TouchCare and You may be referred to herein individually as a “Party” or collectively as the “Parties”.
1.1 “Consultation” means an individual communication event between TouchCare and You related to the provision of Services to You or Your Dependent(s) pursuant to this Agreement.
1.2 “Dependent(s)” means an individual or individuals currently receiving healthcare insurance coverage or benefits from, or under, the Plan as Your dependent, and who is or are authorized by the Plan and TouchCare to access the Services.
1.3 “Documentation” means any instructions, manuals or other materials relating in any way to the Service and made available to You or Dependent(s) by TouchCare.
1.4 “Employer” shall mean the employer sponsor of the Plan, of which You are, or an individual of whom You are a Dependent is, an employee and authorized to receive coverage and benefits under the Plan.
1.5 “Intellectual Property” means all intellectual property of TouchCare, including, without limitation, any and all inventions (whether or not patentable), discoveries, materials, tools, software (both source and object code), works of authorship, know-how, technical information, trade secrets, work product, methods, processes, designs, schematics, and other forms of technology.
1.6 “Intellectual Property Rights” means all past, present, and future rights and benefits of TouchCare in the Intellectual Property, which may exist or be created under the laws of any jurisdiction in the world, including, but not limited to: (a) rights associated with works of authorship, including copyrights; (b) trade secret rights; (c) patent and industrial property rights; (d) trademarks, trade names, logos and service marks; and (e) other ownership or proprietary rights in Intellectual Property of every kind and nature.
1.7 “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including, but not limited to, settlements and judgments), physical injury, mental anguish, loss of wages, pain, suffering, unreimbursed healthcare expenses, and expenses (including, but not limited to, interest, court costs, fees and expenses of attorneys, accountants and other experts or other fees and expenses of litigation or other proceedings or of any claim, default or assessment).
1.8 “Plan” means the group health plan sponsored by the Employer.
1.9 “Providers” means individuals, groups, or facilities offering healthcare services, including, but not limited to, physicians, mid-level providers, therapists, laboratories, imaging centers, urgent care centers, and acute care hospitals.
1.10 “TouchCare Confidential Information” means the confidential and proprietary information and documentation TouchCare may provide, disclose, or otherwise make accessible to You in connection with this Agreement or the Services, including, without limitation, business, operational, financial, or strategic information; trade secrets; technical information and technology; processes and procedures; workflow; text; images; audio recordings; or audio-visual recordings created for, incorporated in, or otherwise part of the Service.
1.11 “Services Arrangement” means the arrangement entered into between TouchCare, Employer and/or the Plan, pursuant to which TouchCare has agreed to make the Services available to You.
1.12 Services” means the services TouchCare has agreed to make available to You pursuant to an applicable Services Arrangement, which services may be modified, expanded, or discontinued, in whole or in part, by TouchCare from time to time.
1.13 “Your Confidential Information” shall mean, specifically, that information received by, or provided by You to, TouchCare that is Your confidential personally-identifiable health information or Your confidential personally identifiable information which, together, can be used to access Your financial assets or credit accounts. Any and all other information You provide to TouchCare, or authorize TouchCare to access or obtain, whether or not You consider such information to be confidential, shall not be deemed Your Confidential Information for purposes of this Agreement.
2.1 Services to be Provided. TouchCare may make available the Services to You, pursuant to an applicable Services Arrangement, and subject further to the terms and conditions of this Agreement. You acknowledge that the Services are subject to availability, and subject to modification or discontinuation, in whole or in part, by TouchCare at any time, in TouchCare’s sole discretion, without notice to You.
2.2 Access to Service. TouchCare may make the Services accessible to You through Consultations, or otherwise, during the period in which You are authorized to access the Services pursuant to this Agreement. Consultations shall be conducted through designated phone numbers, email addresses, web platform, mobile platform, or other means designated by TouchCare from time to time. The Service may generally be available during TouchCare’s regular business hours, which may be changed by TouchCare from time to time.
2.3 Nature of Services.
2.3(a) TouchCare Is Not A Healthcare Provider. YOU ACKNOWLEDGE AND AGREE THAT TOUCHCARE IS NOT, AND SHALL NOT BE REPRESENTED OR DEEMED TO BE, A PROVIDER OF ANY TYPE OF HEALTHCARE, PROFESSIONAL, OR CLINICAL SERVICE, AND THAT NONE OF THE SERVICES PROVIDED BY TOUCHCARE HEREUNDER ARE, OR SHALL BE, CLINICAL IN NATURE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT TOUCHCARE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY, FOR ANY DECISIONS REGARDING DIAGNOSIS, APPROPRIATE COURSES OF TREATMENT, OR TREATMENT FOR, OR WITHHELD FROM, YOU OR YOUR DEPENDENT(S), EVEN IF SUCH DIAGNOSIS OR HEALTHCARE SERVICE RELATES IN ANY WAY TO, OR RESULTS DIRECTLY OR INDIRECTLY FROM, ANY SERVICES PROVIDED BY TOUCHCARE HEREUNDER. YOU SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR YOUR OWN HEALTHCARE DECISION MAKING. YOU, ON BEHALF OF YOUR DEPENDENTS AND YOUR AND YOUR DEPENDENTS’ RESPECTIVE HEIRS AND ASSIGNS, HEREBY IRREVOCABLY WAIVE AND RELEASE TOUCHCARE, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, MEMBERS, OWNERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION, OR LOSSES YOU MAY SUSTAIN OR INCUR OR OTHERWISE HAVE AGAINST THE FOREGOING RELEASED PARTIES ARISING OUT OF OR OTHERWISE CONNECTED IN ANY WAY TO OR WITH HEALTHCARE OR CLINICAL SERVICES RECEIVED BY OR WITHHELD FROM YOU, INCLUDING ANY HEALTHCARE OR CLINICAL SERVICES TIED OR RELATED IN ANY WAY TO TOUCHCARE’S SERVICES PROVIDED IN CONJUNCTION WITH THIS AGREEMENT.
2.3(b) Provider Selection. YOU ACKNOWLEDGE AND AGREE THAT, WHILE TOUCHCARE MAY ASSIST YOU IN SELECTING A PROVIDER TO RENDER HEALTHCARE TREATMENT OR SERVICES TO YOU, YOU SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR EVALUATING THE QUALIFICATIONS OF ANY PROVIDER FROM WHICH YOU SEEK HEALTHCARE-RELATED SERVICES, AS WELL AS FOR THE ACTUAL SELECTION OF ANY SUCH PROVIDER. THE DECISION TO SEEK SERVICES FROM ANY PROVIDER SUGGESTED TO YOU BY TOUCHCARE SHALL BE SOLELY AND EXCLUSIVELY YOURS, AND SHALL BE AT YOUR OWN RISK. TOUCHCARE DOES NOT ENDORSE, NOR PROVIDE ANY REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND, WITH RESPECT TO ANY PROVIDER.
2.3(c) Plan Policies, Rules, and Decisions. YOU ACKNOWLEDGE AND AGREE THAT TOUCHCARE SHALL NOT BE RESPONSIBLE IN ANY WAY FOR THE policies, procedures, manuals, documentation, requirements, OR information applicable to the coverage, services, OR BENEFITS provided to or for You or your dependent(s) by the Plan, as may be adopted, updated, or amended by the Plan at any time. touchcare shall not be obligated to independently investigate or monitor the adoption of, or modification to, any such policies, procedures, manuals, documentation, requirements, or INFORMATION. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT TOUCHCARE SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY INTERPRETATION OR DECISION MADE BY THE PLAN WITH RESPECT TO THE COVERAGE, BENEFITS, OR SERVICES PROVIDEd TO OR FOR YOU or your dependent(s) BY THE PLAN, INCLUDING, BUT NOT LIMITED TO, THE PLAN’S DETERMINATION TO DENY COVERAGE OR PAYMENT FOR HEALTHCARE OR CLINICAL SERVICES RECEIVED BY OR WITHHELD FROM YOU OR YOUR DEPENDENT(S).
- Use of SERVICE
3.1 Initiation of the Service. You are responsible for initiating the use of the Services by contacting TouchCare as described herein.
3.2 Conditions of Access to Services. Your access to, and use of, the Services shall be conditioned upon Your compliance with the terms of this Agreement, the Documentation, other applicable TouchCare policies and procedures, and applicable law. You further shall cause Your Dependent(s) to comply with the terms of this Agreement, and You shall be responsible for a breach of this Agreement by any of Your Dependent(s). You shall use the Service solely for the purposes as contemplated by this Agreement for You and Your Dependent(s), and neither You nor any of Your Dependents shall: (i) utilize the Service on behalf of another individual not authorized to use the Service or otherwise make the Service available to any other individual other than Your Dependents; (ii) interfere with or disrupt the integrity or performance of the Service; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; (iv) access the Services if You are, or are directly or indirectly engaged by or affiliated with, a TouchCare competitor; (v) access the Services for purposes of monitoring the availability, performance or functionality of the Service; (vi) access the Service unless You are and shall remain an employee of the Employer, or a Dependent of an employee of the Employer, while using the Services; or (vii) or for any other benchmarking or competitive purposes.
3.3 Your Authorizations of TouchCare. In order to facilitate TouchCare’s provision of Services to You, You hereby authorize TouchCare to:
3.3(a) Use Your or Your Dependent(s) email address, telephone number, name, birthdate, and other components of Your contact information to send You and Your Dependent(s) marketing and promotional information concerning TouchCare, the Services, and other services offered by TouchCare, consistent with applicable laws;
3.3(b) Communicate on Your behalf or on the behalf of Your Dependent(s) with the Plan and Providers in conjunction with providing Services to You;
3.3(c) Communicate with and act on the behalf of Your Dependent(s) under the age of 21 in a manner consistent with applicable law; and
3.3(d) Communicate with You and/or Your Dependent(s) about the Services via phone, email, direct mailing, SMS text message, push notification, in-platform messaging, or by leaving voicemail messages at a telephone number You designate.
- Payments OWED FOR HEALTHCARE SERVICES
4.1 You acknowledge that TouchCare is not responsible for paying for any healthcare service You receive, and that TouchCare is not responsible for payment for any healthcare services You utilize. Without limiting the foregoing, You acknowledge that TouchCare shall not be responsible for payment of any copays, deductibles, or other patient responsibility payments associated with healthcare services You receive, or with respect to coverage or benefits You receive by or under the Plan. You agree to be solely and exclusively responsible for payment of all fees, costs, and expenses, without limitation, associated with any healthcare services You receive or with respect to coverage or benefits You receive from or under the Plan, regardless of whether You have utilized TouchCare’s Services in conjunction with such healthcare services.
- Intellectual Property
5.1 Ownership. You acknowledge that the Service, the Documentation, and any Intellectual Property associated therewith or with TouchCare, is owned by, and shall remain the sole and exclusive property of TouchCare and its licensors, and that the Service and Documentation contains, embodies, incorporates, and/or is based upon Intellectual Property Rights owned or licensed by TouchCare and its licensors, and that TouchCare and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Service, Documentation, and Intellectual Property worldwide including, without limitation, any derivative works. This Agreement does not convey to You title, ownership, or license of the Service, Documentation, any Intellectual Property, any Intellectual Property Rights, or any part thereof.
5.2 Use Restrictions. You shall not (i) modify, copy or create derivative works based on the Service, Documentation, or Intellectual Property; (ii) frame or mirror any content forming part of the Service, Documentation, or Intellectual Property; (iii) reverse engineer the Service, Documentation, or Intellectual Property; or (iv) access the Service, Documentation, or Intellectual Property in order to (1) build a competitive product or service, (2) copy any ideas, features, functions or graphics associated therewith, or (3) for any other purpose or reason than related to Your own use of the Service in direct relation to Your, or Your Dependent(s), procurement of healthcare services.
5.3 Suggestions. TouchCare shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback of any type, without limitation, provided by You or Your Dependent(s) relating to the Service.
- Confidentiality AND Data PRIVACY
6.1 Your Confidentiality Obligations. You shall hold all TouchCare Confidential Information in strict confidence and shall use such TouchCare Confidential Information only in conjunction with Your receipt of Services as set forth in this Agreement. You shall not disclose, publish, release, transfer or otherwise make available TouchCare Confidential Information in any form to, or for the use or benefit of, any third party without TouchCare’s consent, which consent may be withheld in TouchCare’s sole discretion.
6.1 TouchCare’s Confidentiality Obligations. TouchCare will hold Your Confidential Information in confidence, and will use and disclose such information only as set forth in this Agreement or as permitted by applicable law. Notwithstanding the foregoing, TouchCare shall be permitted to disclose relevant aspects of Your Confidential Information to its affiliates and the owners, managers, officers, directors, agents, professional advisors of it and its affiliates, and to prospective financing sources or acquirers, to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations, or exercise of its rights, under this Agreement, or as otherwise permitted under applicable law. In addition, this Section will not restrict any disclosure pursuant to any law or rules, including any securities law, stock exchange rules, or pursuant to a subpoena, court or other compulsory process.
6.2 Protected Health Information. To the extent any of Your Confidential Information or other information You make available to TouchCare constitutes Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 and the accompanying regulations (“HIPAA”), TouchCare will and may use and disclose such information as permitted under HIPAA.
7.1 Termination. TouchCare may terminate or suspend this Agreement, and Your and Your Dependents’ access to the Services, immediately and without notice, at any time and for any reason, in TouchCare’s sole discretion.
7.2 Survival. The following provisions will survive termination or expiration of this Agreement: Article 1 (Definitions), Section 2.3 (Nature of Service), Article 5 (Intellectual Property), Article 6 (Confidentiality and Data Privacy), Article 8 (Warranty and Disclaimers), Article 9 (Limitation on Liability), and Section 10 (General Provisions).
- Warranty and Disclaimers
8.1 TouchCare Warranties. TouchCare warrants the Service will be fulfilled in a manner materially consistent with applicable laws or regulations. TouchCare’s sole obligation, and Your sole and exclusive remedy, for any breach of this Section shall be to correct any failures of the Service to satisfy the foregoing warranties.
8.2 Warranty Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND TOUCHCARE AND ITS AFFILIATES EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TOUCHCARE AND ITS AFFILIATES SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE PROVISION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
- Limitation of Liability
9.1 Limitation on Indirect Damages. TOUCHCARE SHALL NOT BE LIABLE TO YOU OR YOUR DEPENDENTS HEREUNDER FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST INCOME, OR LOST INFORMATION) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY.
9.2 Limitation on Direct Damages. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF TOUCHCARE, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, OR AGENTS, IN CONJUNCTION WITH, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY TOUCHCARE IN CONJUNCTION WITH AN APPLICABLE SERVICES ARRANGEMENT RELATED TO SERVICES PROVIDED TO YOU DURING THE THREE (3) MONTHS THAT PRECEDED THE EVENT GIVING RISE TO LIABILITY.
- General Provisions
10.1 Amendment. You acknowledge and agree that TouchCare may update or modify this Agreement at any time.
10.2 Assignment. You may not assign Your rights or delegate Your duties under this Agreement without the prior written consent of TouchCare and any such purported assignment is void. Subject to the foregoing, this Agreement will inure to the benefit of the Parties’ permitted successors and assigns.
10.3 Counterparts. This Agreement may be recorded or accepted in any number of counterparts and stored by electronic means, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the Parties.
10.4 Entire Agreement. This Agreement represents the entire agreement between the Parties with respect to its subject matter, and there are no other representations, understandings or agreements between the Parties relative to such subject matter.
10.5 Force Majeure. TouchCare’s failure to perform its obligations under this Agreement (except payment obligations) will be excused to the extent caused by events beyond a Party’s reasonable control, including, but not limited to, war, natural disasters, governmental prohibitions or regulations, viruses or malware, or technical faults of TouchCare’s service providers or vendors.
10.6 Governing Law, Jurisdiction and Venue. This Agreement and the rights and obligations of the Parties under this Agreement will be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the principles thereof relating to the conflicts of laws. Any dispute regarding this Agreement will be heard and resolved in the State and Federal courts located in Raleigh, North Carolina. Each of the Parties hereto hereby submits to the jurisdiction of such courts, acknowledges that venue is proper in such courts, and waives any objection to venue there. The Parties further agree that any and all claims or actions arising out of or relating to this Agreement shall be tried non-jury and that, SUBJECT TO APPLICABLE LAW, the Parties hereby expressly waive any and all rights to have such claims or actions be tried before a jury.
10.7 Headings/Construction. The headings in this Agreement are for reference and convenience only and will not be considered in the interpretation of this Agreement. The Parties acknowledge and agree that this Agreement has been negotiated at arms’ length, and shall not be construed for or against any Party by virtue of draftsmanship.
10.8 Notices. Notices, requests, consents, approvals, agreements, authorizations, acknowledgments, waivers and other communications required or permitted under this Agreement will be deemed duly given if receipt is acknowledged by the recipient, or if delivered by courier, certified or registered mail, email, or other electronic communication.
10.9 Relationship of Parties. The Parties intend to create an independent relationship and nothing contained in this Agreement will be construed to make either TouchCare or You legal partners, joint venturers, principals, agents or employees of the other. Neither Party will have any right, power or authority, express or implied, to bind the other.
10.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement, if capable of substantial performance, will remain in full force and effect.
10.11 Third Party Beneficiaries. Each Party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Parties, except for any indemnitee.
10.12 Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
10.13 Acceptance. You shall be deemed to have accepted this Agreement and agreed to be bound by the terms and conditions set forth herein, if You have: (1) clicked “ I Agree,” below; (2) accessed or used the Services, including by initiating a Consultation with TouchCare through any means; (3) signed or executed a written copy of this Agreement; or (4) otherwise signaled Your acceptance of, or intention to be bound by, this Agreement, whether by Your conduct, or written or electronic communication.