Terms of Use
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BLUEBERRY PEDIATRICS TERMS OF USE

Last revised: September 19, 2019

These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites and mobile applications) owned and controlled by SparkMD, Inc. (“Blueberry Pediatrics”, “we,” “us,” and “our”), including the https://www.blueberrypediatrics.com website (the “Site”), as well as the services (“Services”) and products (“Products”) available to users through the Site. Blueberry Pediatrics contracts with Blueberry Medical PA, and other various healthcare entities and their affiliates, (collectively defined as “Medical Group”) regarding online telehealth medical consultations and secure messaging between Medical Group physicians (individually the “Provider” and collectively the “Providers”) and their patients. (See Section 19 for supplemental terms applicable to Providers.) The professional medical services (which are provided by a third party or Blueberry Medical PA, that is not under the control of Blueberry Pediatrics) and the non-clinical Site services (which are provided by Blueberry Pediatrics) are collectively referred to in this Terms of Use as the “Services”. The terms “you” and “your” means you, your dependent(s) if any, any minor that you are the legal guardian for, and any other person accessing your Blueberry Pediatrics Account.

Your acceptance of, and compliance with, these Terms of Use is a condition to your use of the Site and Services and purchase of Products. By clicking “accept”, you acknowledge that you have read, understand, and accept all terms and conditions contained within the Terms of Use, Notice of Privacy Practices, and Privacy Policy. If you do not agree to be bound by these terms, you are not authorized to access or use this Site or Services; promptly exit this Site.

Binding Arbitration. These Terms of Use provide that all disputes between you and Blueberry Pediatrics that in any way relate to these Terms of Use or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE AND KNOWINGLY CONSENT TO GIVE UP YOUR RIGHT TO GO TO COURT IN ANY JURISDICTION (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action or other court proceeding. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with Blueberry Pediatrics.

1.    Privacy Practices 


You agree that information provided by you in connection with the Services and Site shall be governed by the Blueberry Pediatrics
Privacy Policy which is hereby incorporated and made a part of this Agreement. You agree that information provided by you in connection with the Services shall also be governed by the Medical Group Notice of Privacy Practices, and is hereby incorporated and made a part of this Agreement.

 

2.    Services Provided – No Medical Care or Advice by SparkMD, Inc. 


We offer an online communication platform for Providers and their patients to connect via the Site through the use of synchronous and asynchronous telecommunications technologies. The Site facilitates communication between patients and Providers. 
Blueberry Pediatrics does not provide medical advice or care. Blueberry Pediatrics contracts with Medical Group, an independent, physician-owned medical group with a network of United States based Providers who provide clinical telehealth services. Medical Group Providers deliver clinical services via the Blueberry Pediatrics platform to their patients. Providers are independently contracted or employed by Medical Group. Providers are not contracted or employed by Blueberry Pediatrics. The Providers, and
not Blueberry Pediatrics, are solely responsible for the quality and appropriateness of the care they render to you.

 
The Providers are independent of Blueberry Pediatrics and are merely using the Site as a way to communicate with you. Any information or advice received from a Provider comes from them alone, and not from Blueberry Pediatrics. Your interactions with the providers via the Site are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither Blueberry Pediatrics, nor any of its subsidiaries or affiliates or any third party who may promote the Site or Service or provide a link to the Service, shall be liable for any professional advice obtained from a Provider via the Site or Service, nor any information obtained on the Site. Blueberry Pediatrics does not recommend or endorse any specific Providers, tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any Providers or information delivered by the Providers via the Site or Service is solely at your own risk and you assume full responsibility for all risks associated herewith. 


Blueberry Pediatrics does not make any representations or warranties about the training or skill of any Providers who deliver services via the Site or Service. You will be provided with an available on-call Provider based solely on the information you submit to the Site. You are ultimately responsible for choosing to engage any particular available on-call Provider. 


The content of the Site and the Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Blueberry Pediatrics. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by Blueberry Pediatrics, or in connection with any communications supported by Blueberry Pediatrics, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While Blueberry Pediatrics facilitates your selection of, and communications with, Providers, Blueberry Pediatrics does not provide medical services, or medical advice, and the doctor-patient relationship is between you and the Medical Group Provider you select. You expressly acknowledge that while some of the material on the Site relates to health-related issues, neither the Company nor its employees are licensed to, or are otherwise providing any medical advice.


Not for Emergencies
. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY. 

Blueberry Pediatrics’ Site and Services are not for medical emergencies or urgent situations. You should not disregard or delay seeking medical advice based on anything that appears or does not appear on the Site. If you believe you have an emergency, call 9-1-1 immediately. You should seek emergency help or follow up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification. 


Risks of Telehealth Services 
By using the Services, you acknowledge the potential risks associated with telehealth services. These include but are not limited to the following: information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical or health care decision making by the Provider; delays in evaluation or treatment could occur due to failures of electronic equipment; a lack of access to your medical records may result in adverse drug interactions or allergic reactions or other judgment errors; although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail causing a breach of privacy of your health information. Unfortunately, the transmission of information via the internet is not completely secure. Although we take commercially reasonable steps designed to protect your personal information, we cannot guarantee the security of your personal information transmitted to, or through, our Services. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures employed by the Services.


Prescription Policy 


Neither Blueberry Pediatrics nor Medical Group endorse any specific medication, pharmacy, or pharmacologic product. If a Provider prescribes a medication, he/she will limit supply based upon state regulations and will only prescribe a medication as determined in his/her own discretion and professional judgment. There is no guarantee a prescription will be written. Providers do not prescribe DEA controlled substances or scheduled medications, or certain other drugs which may be harmful because of their potential for abuse. Providers reserve the right to deny care for actual or potential misuse of the Services. 


You agree that any prescriptions that you acquire from a Provider will be solely for your personal use. You agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if you have any questions regarding the prescription. Blueberry Pediatrics and Medical Group fully honor patient freedom of choice and, if you receive a prescription for a medication, you always have the option to instruct Medical Group to transmit that prescription to the pharmacy of your choice. 


Not an Insurance Product 


Neither Blueberry Pediatrics nor Medical Group are insurers. The Services are not insurance products, and the amounts you pay to Blueberry Pediatrics or Medical Group are not insurance premiums. If you desire any type of health or other insurance, you will need to purchase such insurance separately.

Business Intelligence

By using the Site or Services, you acknowledge and consent to Blueberry Pediatrics, or its affiliates, using your de-identified information for Business Intelligence, in accordance with applicable law and this Agreement. “Business Intelligence” means any information derived from or relating to your de-identified personal data as gathered by machine learning and artificial intelligence algorithms applied by Blueberry Pediatrics, or their affiliates, to the de-identified data, including any and all insights, quantitative and qualitative results, statistical results derived from such machine learning and artificial intelligence. For the avoidance of doubt, Business Intelligence shall not include PHI specifically identifiable to any patient.

 

3.    Availability of Services 


Blueberry Pediatrics and Medical Group operate subject to state and federal regulations, and the Services may not be available in your state. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Site and/or the Services is limited exclusively to users located in States within the United States where the Services are available. Services are not available to users located outside the United States. Accessing the Site or Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.

 

4.    Eligibility; Site Access, Security and Restrictions; Passwords 


In order to access the Site and the Services, you represent and warrant that you are older than 18 years old. To request a visit for a minor patient, you must be the parent or legal guardian, or an individual with uncontested legal authority to arrange for and consent to the treatment of the patient. By using the Site and requesting a visit for a patient that has a legal guardian, you represent that you have the legal authority to make the request and you certify that the legal guardian of the patient will be physically present for the duration of the requested visit.  If a legal guardian is unable to request a visit, the legal guardian may provide Medical Group with prior, written authorization that identifies by name an individual who has the power and authority to consent to the treatment of the minor patient. You understand and agree, that if a legal guardian is not present or an authorization to consent to treatment is not received prior to the visit, then a patient with a legal guardian cannot receive the requested medical care. Medical Group doctors will only provide care for children whose parents or legal guardians agree to follow the American Academy of Pediatrics’ (“AAP”) recommended vaccine schedule or catch-up on vaccines according to the Centers of Disease Control and Prevention’s (“CDC”) recommended schedule. It is at the discretion of the Provider whether or not they can provide care to infants and children whose parents or guardians refuse routine childhood vaccinations.

You agree to fully, accurately, and truthfully create your Blueberry Pediatrics Account (“Account”), including but not limited to your name, mailing address, phone number, email address, and password, which become your Blueberry Pediatrics ID and credentials. The Blueberry Pediatrics ID and/or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your Blueberry Pediatrics ID and/or credentials, and for all activities that occur under such Blueberry Pediatrics ID and/or credentials. You agree to prohibit anyone else from using your Blueberry Pediatrics ID and/or credentials and agree to immediately notify Blueberry Pediatrics of any actual or suspected unauthorized use of your Blueberry Pediatrics ID and/or credentials or other security concerns of which you become aware. Your access to the Site may be revoked by Blueberry Pediatrics at any time with or without cause. 
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. 
You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site. Violations of system or network security may result in civil or criminal liability. Blueberry Pediatrics will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

 

5.    Electronic Communications 


When you use the Site or Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Blueberry Pediatrics and Medical Group may contact you by telephone, mail, or email to verify your account information. Blueberry Pediatrics and Medical Group may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within fourteen (14) days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Site and the Services until you provide the information to us as requested.

 

6.    Consent to Receive Calls and Text Messages 


By providing your mobile number, you are agreeing to be contacted by or on behalf of Blueberry Pediatrics and Medical Group at the mobile number you have provided, including calls and text messages, to receive informational, Product or Service related (e.g., progress tracking, refill reminders, checkup reminders, etc.) and marketing communications relating to the Site and Services. Message and data rates may apply. For help, text the word HELP to (754) 702-7256. To stop receiving text messages text the work STOP (754) 702-7256. We may confirm your opt out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message and/or respond to your STOP message by texting you a request to identify services you wish to stop. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your progress and treatment.

 

7.    Ownership of The Site and Related Materials; Additional Restrictions 


All pages within this Site and any material made available for download are the property of Blueberry Pediatrics, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. 
All rights not expressly granted to you in these Terms of Use are reserved and retained by Blueberry Pediatrics or its licensors, suppliers, publishers, rights holders, or other content providers. Neither the Site and Services, nor any part of the Site and Services, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Blueberry Pediatrics. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Blueberry Pediatrics without express written consent. You may not use any meta tags or any other "hidden text" utilizing Blueberry Pediatrics’ name or trademarks without the express written consent of Blueberry Pediatrics. You may not misuse the Site or Services. You may use the Site and Services only as permitted by law. The content of the Site, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by Blueberry Pediatrics. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, content or other proprietary information (including; images, text, page layout, or form) of Blueberry Pediatrics without our express written consent.

 

8.    Charges; Credit Card Billing; Additional Purchases


The Site does not allow use of any credit, flex or debit card connected to your employer’s group health plan, cafeteria plan, flex plan, 125 plan or self-insured group health plan. By clicking to accept this agreement you verify that your credit card is not connected to your employer’s group health plan, cafeteria plan, flex plan, 125 plan or any health insurance, PPO, HMO, medigap policy, or any governmental health plan. Generally, Medical Group doctors engaged by you through the Site do not accept Medicaid, Medicare, CHIP, Tricare, or any other insurance. You acknowledge and agree that you shall be personally responsible for all incurred fees, charges, and expenses. You agree to pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. From time to time, Medical Group may have certain contracts with third-party payors to provide services, in any such case certain terms above may not be applicable instead terms negotiated with any third-party payor will be applicable. When registering an account, we will request your credit card information. This information will be used to bill you. Your credit card or other transaction data are retained using bank-level encryption so that Medical Group can charge you monthly. Medical Group charges your card before the beginning of the next month’s service. If you cancel your membership, Medical Group will stop charging your card, and you will be able to use Blueberry Pediatrics until the end of the current billing period. If you believe you have been incorrectly charged, or don’t recognize a charge, by Blueberry Pediatrics or Medical Group, please email us at [email protected]

 

9.     Accuracy of Information; Functionality 


Although Blueberry Pediatrics attempts to ensure the integrity and accurateness of the Site and related materials, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site, its content or any services or items obtained through the Site. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Blueberry Pediatrics so that it can be corrected. Information contained on the Site may be changed or updated without notice. Additionally, Blueberry Pediatrics shall have no responsibility or liability for information or content, or its accuracy, posted to the Site from any non-Blueberry Pediatrics affiliated third party. 
Blueberry Pediatrics and Medical Group each reserve complete and sole discretion with respect to the operation of the Site and the Services. We may withdraw, suspend, or discontinue any functionality or feature of the Site or the Services among other things. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the Site or with respect to the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the Site or the Services in accordance with our internal record retention and/or destruction policies.

 

10. Links to Other Sites 


Blueberry Pediatrics makes no representations whatsoever about any other website that you may access through this Site. When you access a non-Blueberry Pediatrics site, please understand that it is independent from Blueberry Pediatrics, and that Blueberry Pediatrics has no control over the content on that website. In addition, a link to a non-Blueberry Pediatrics website does not mean that Blueberry Pediatrics endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third-party sites linked to this Site, you do this entirely at your own risk.

 

11. User Information 


If you submit, upload, post or transmit any health information, medical history, conditions, problems, symptoms, personal information, consent forms, agreements, requests, comments, ideas, suggestions, information, files, videos, images or other materials to us or our Site (“User Information”), you agree not to provide any User Information that (1) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Blueberry Pediatrics and Medical Group that you have the legal right and authorization to provide all User Information to Blueberry Pediatrics and Medical Group for use as set forth herein and required by Blueberry Pediatrics and the Medical Group Provider. 
You agree not to (i) access the Site or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (a) a message under a false name, or (b) any data, materials, content, or information (including, without limitation, advice, and recommendations) (collectively “Information”) which is (1) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (2) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Site or the Services, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Site or the Services; (v) use robots or scripts with the Site; (vi) attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Site; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to Blueberry Pediatrics. You may not alter the attribution or origin of electronic mail, messages, or posting; (ix) harvest or collect PHI about any other individual who uses the Site or the Services; (x) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties. 
You agree to defend, indemnify and hold harmless Blueberry Pediatrics, Medical Group, and the Providers from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by us arising out of any User Information you upload to or transmit through the Site.

 

12. Claims of Copyright Infringement 


We disclaim any responsibility or liability for copyrighted materials posted on our site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below. 
Blueberry Pediatrics respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Blueberry Pediatrics’ Designated Copyright Agent, identified below 


Notices of Alleged Infringement for Content Made Available on the Site 
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us notice ("Notice") complying with the following requirements.

1.    Identify the copyrighted works that you claim have been infringed.

2.    Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.

3.    Provide your mailing address, telephone number, and, if available, email address.

4.    Include both of the following statements in the body of the Notice:

"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."

"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."

5.    Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to [email protected]

 

13. Intellectual Property 


With the exception of your electronic medical record, Blueberry Pediatrics and Medical Group, as applicable, retain all right, title, and interest in and to the Site, the Services and any information, products, documentation, software, or other materials on the Site, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the Site licensed by Blueberry Pediatrics or Medical Group (in that case, the license provider retains all right, title, and interest therein). The information available through the Site and the Services is the property of Blueberry Pediatrics or Medical Group, as applicable. You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such information to anyone. Use, reproduction, copying, or redistribution of Blueberry Pediatrics or Medical Group trademarks, service marks, and logos are strictly prohibited without the prior written permission of Blueberry Pediatrics or Medical Group, as applicable. The immediately foregoing sentence also applies to any third-party trademarks, service marks, and logos posted on the Site. Nothing contained on the Site should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademarks, service marks or logos displayed on the Site without the written grant thereof by Blueberry Pediatrics, Medical Group or the third-party owner of such trademarks, service marks, and/or logos. The Site may contain other proprietary notices and copyright information, the terms of which you agree to follow. 
Blueberry Pediatrics may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity

 

14. Disclaimer of Warranties 


BLUEBERRY PEDIATRICS DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. BLUEBERRY PEDIATRICS DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE. 
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. BLUEBERRY PEDIATRICS DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY. 
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY BLUEBERRY PEDIATRICS ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED BY BLUEBERRY PEDIATRICS OR THIRD PARTIES WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES

 

15. Limitation of Liability Regarding Use of Site 


EXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION: 
BLUEBERRY PEDIATRICS SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF MEDICAL GROUP OR THE PROVIDERS. BLUEBERRY PEDIATRICS AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH MEDICAL GROUP OR THE PROVIDERS. FURTHERMORE, BLUEBERRY PEDIATRICS DOES NOT RECOMMEND, AND YOU AGREE TO BE WHOLLY RESPONSIBLE, IF YOU OR ANY MINOR OR PATIENT FOR WHOM YOU ARE RESPONSIBLE DECIDES TO MEET OFFLINE OR IN PERSON WITH ANY MEDICAL GROUP PROVIDERS.YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF BLUEBERRY PEDIATRICS TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS). YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.

 

16. No Third Party Rights

 
Unless expressly stated in the Terms of Use to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Blueberry Pediatrics, Medical Group, and its affiliates. Nothing in the Terms of Use is intended to relieve or discharge the obligation or liability of any third persons to you, Blueberry Pediatrics, Medical Group, and its affiliates, nor shall any provision give any third parties any right of subrogation or action over against you, Blueberry Pediatrics, Medical Group, and its affiliates.

17. Assignment

 
You may not assign, transfer, or delegate the Terms of Use or any part thereof without Blueberry Pediatrics’ prior written consent. Blueberry Pediatrics may freely transfer, assign, or delegate all or any part of the Terms of Use, and any rights or duties hereunder or thereunder. The Terms of Use will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.

18. Supplemental Terms Applicable to Providers 


These supplemental terms apply to Providers in addition the other provisions of these Terms of Use. In the event of a conflict between the supplemental terms and any other terms herein, the supplemental terms shall prevail. 
Every healthcare provider using the Site (“Provider”) must be a licensed physician contracted or employed by Medical Group, and must agree to comply with all laws, medical board rules and other rules and regulations applicable to you as a Provider or otherwise. Your relationship with the Blueberry Pediatrics users (including your Medical Group patients) is directly between you as the Provider and the patient. The patient will never have a physician-patient relationship with Blueberry Pediatrics. Blueberry Pediatrics does not practice medicine and offers no medical services. As set forth more fully below, Provider is solely responsible for all agreements, consents, notices and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Provider is solely responsible for all billings and collections from patients and other consumers, and Blueberry Pediatrics shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider. 


Blueberry Pediatrics does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Provider, goods or services offered by Provider, including but not limited any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Provider’s compliance obligations under law. Provider and Blueberry Pediatrics agree that Blueberry Pediatrics is not providing, to Customer or anyone else, medical advice or legal advice. 
Provider will use the Site and Services only in accordance with applicable standards of good medical practice. While software products such as the Site and Services can facilitate and improve the quality of service that Provider can offer patients, many factors, including the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider shall be solely responsible for its use of the Site and Services, and the provision of medical services to Provider’s patients. In this regard, Provider releases Blueberry Pediatrics and waives any and all potential claims against Blueberry Pediatrics as a result of Provider’s use of the Site and Services, and the provision of services to Provider’s patients. 


As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify and hold Blueberry Pediatrics harmless from any claim by or on behalf of any patient of Provider, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a patient, which is brought against Blueberry Pediatrics, regardless of the cause if such claim arises for any reason whatsoever, out of Provider’s use or operation of the Site and Services. To the extent applicable, Provider will obtain Blueberry Pediatrics’ prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of Blueberry Pediatrics or defect in the Site or Services. Blueberry Pediatrics will promptly notify Provider in writing of any claim subject to this indemnification, promptly provide Provider with the information reasonably required for the defense of the same, and grant to Provider exclusive control over its defense and settlement. 
If Provider submit, upload, transmit, or post any consents, notices, advice, recommendations, comments, files, videos, images or other materials to us or our Site (“Provider Content”) or provide any Provider Content to patients or other consumers, Provider agree not to provide any Provider Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. Provider is solely responsible for obtaining all necessary agreements and consents from, and providing all required notices to, patients and other consumers. Provider agree not to contact other users through unsolicited e-mail, telephone calls, mailings or any other method of communication. Provider represent and warrant to Blueberry Pediatrics that Provider have the legal right and authorization to upload all Provider Content at the Site. Blueberry Pediatrics shall have a royalty-free, irrevocable, transferable right and license to use the Provider Content however Blueberry Pediatrics desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such Provider Content and/or incorporate such Provider Content into any form, medium or technology throughout the world. Blueberry Pediatrics is and shall be under no obligation (1) to maintain any Provider Content in confidence; (2) to pay to Provider any compensation for any Provider Content; or (3) to respond to any Provider Content. 
Blueberry Pediatrics does not regularly review Provider Content, but does reserve the right (but not the obligation) to monitor and edit or remove any Provider Content submitted to the Site. You grant Blueberry Pediatrics the right to use the name that you submit in connection with any Provider Content. Provider agrees not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Provider Content. Provider is and shall remain solely responsible for the content of any Provider Content posted to the Site or provided to any patients or other consumers. Blueberry Pediatrics and its affiliates take no responsibility and assume no liability for any Provider Content submitted by Provider or any third party.

19. Dispute Resolution; Arbitration Agreement 


We will try work in good faith to resolve any issue you have with Site, including Products and Services ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction. 
You and Blueberry Pediatrics agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including Products and Services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Blueberry Pediatrics are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Blueberry Pediatrics. 


If you desire to assert a claim against Blueberry Pediatrics, and you therefore elect to seek arbitration, you must first send to Blueberry Pediatrics, by certified mail, a written notice of your claim ("Notice"). The Notice to Blueberry Pediatrics should be addressed to: 2672 Bayshore Parkway Suite 608, Mountain View, CA 94043 ("Notice Address"). If Blueberry Pediatrics desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Blueberry Pediatrics, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Blueberry Pediatrics and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Blueberry Pediatrics may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Blueberry Pediatrics or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Blueberry Pediatrics receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless Blueberry Pediatrics and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Blueberry Pediatrics’ last written settlement offer made before an arbitrator was selected (or if Blueberry Pediatrics did not make a settlement offer before an arbitrator was selected), then Blueberry Pediatrics will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. 


YOU AND COMPANY AGREE THAT EACH 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 PROCEEDING. Further, unless both you and Blueberry Pediatrics agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. 


If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Mountain View, CA

 

20. Force Majeure 


We will not be deemed to be in breach of these terms or liable for any breach of these terms or our privacy policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire or other disaster.

 

 

21. Indemnification 


You agree to defend, indemnify, and hold harmless Blueberry Pediatrics, Medical Group, and any affiliates from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorney’s fees of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use or misuse of the Site, Products or Services or any information posted on the Site; (ii) your breach of the Terms of Use or Privacy Policy; (iii) the content or subject matter of any information you provide to Blueberry Pediatrics, Medical Group, or any Provider or customer service agent; and/or (iv) any negligent or wrongful act or omission by you in your use or misuse of the Site, Products or Services or any information on the Site, including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.

 

22. Revisions; General 


Blueberry Pediatrics reserves the right, in its sole discretion, to terminate your access to all or part of this Site, with or without cause, and with or without notice. Blueberry Pediatrics reserves the right to modify these Terms of Use at any time, effective upon posting. Any use of this website after such changes will be deemed an acceptance of those changes. You agree to review the Terms of Use each time you access this website so that you may be aware of any changes to these Terms. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between Blueberry Pediatrics and you pertaining to the subject matter hereof. In its sole discretion, Blueberry Pediatrics may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site. Copyright/Trademark Information. Copyright ©2019 Blueberry Pediatrics, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

How to Contact Us:

SparkMD, Inc.
2672 Bayshore Parkway Suite 608

Mountain View, CA 94043

Telephone: (754) 702-7256
Email:
[email protected]