Terms of Use
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Terms of Use

Last updated: April 6, 2018

SparkMD, Inc. (“Blueberry Pediatrics”), its predecessors, licensors, beneficiaries, and its contracted independent entities, including without limitation Blueberry Pediatrics Doctors and Blueberry Pediatrics Seniors (collectively, the “Companies”, “we”, or “us”), operates the website located at blueberrypediatrics.com and other related websites and mobile applications with links to these Terms of Use (collectively, the “Site”). We offer online telehealth services allowing you to engage healthcare professionals (“Healthcare Professionals”) to obtain medical and healthcare services (“Services”). By accessing and using the Site, you agree to be bound by these Terms of Use and all other terms and policies that appear on the Site. If you do not wish to be bound by any of the Terms of Use, you may not use the Site or the Services. Although accessible by others, the Services (which include content) are intended for access and use only by U.S. customers. Please read these terms and conditions of use (the “Agreement”) carefully before accessing or using the Services.

The Companies may revise and update this Agreement at any time. Your continued use of the Site or our Services will indicate your acknowledgement that  you accept the revised Terms of Use and agree to be bound by the revised Terms of Use.

1. Our Services; Registration

The Site allows you to transmit a request for a virtual visit to a Blueberry Pediatrics Healthcare Professional, and provides the capability for the Healthcare Professional to receive telehealth services.Upon a request for a virtual visit, the Site will transmit your request to an available Healthcare Professional. Upon providing certain relevant information to the Healthcare Professional through the Site, if a Healthcare Professional  licensed to practice medicine in the applicable jurisdiction working is available, he or she will then choose whether or not to provide treatment based on information received.

Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to this Agreement. You are responsible for all equipment necessary to appropriately access the Site.

NEVER DISREGARD, AVOID OR DELAY IN OBTAINING MEDICAL ADVICE FROM YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER BECAUSE OF SOMETHING YOU HAVE READ THROUGH OUR SITE. DO NOT USE THE SITE TO SEEK MEDICAL SERVICES FOR SOMEONE WHO IS UNCONSCIOUS, NOT BREATHING OR GASPING FOR AIR, EXPERIENCING AN ALLERGIC REACTION, HAVING CHEST PAIN, UNCONTROLLABLY BLEEDING, OR ANY OTHER SYMPTOMS THAT REQUIRE IMMEDIATE OR EMERGENT MEDICAL ATTENTION. CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM IMMEDIATELY IF YOU HAVE AN EMERGENCY MEDICAL NEED.

In order to obtain our Services you must provide us with certain personal information and register for an account. We respect your privacy and a complete statement of our current privacy policy can be found here (“Privacy Policy”) https://www.blueberrypediatrics.com/privacy. Our Privacy Policy is expressly incorporated into this Agreement by this reference.

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 or any health insurance, PPO, HMO, medigap policy, or any governmental health plan. Currently, Healthcare Professionals 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 (explained more below).

It is imperative that you provide accurate and truthful information during the registration process. By submitting the registration information requested you represent and warrant to us that all of the personal information you provide during this process is true and correct. We reserve the right to refuse or cancel your registration or your use of the Site and/or the Services.  if we determine that you have not provided complete and accurate information regarding your identity and/or have otherwise not provided accurate information.

You also agree that you will not choose or use a username that: (i) belongs to another person or is used with the intent of impersonating another person; or (ii) is subject to any rights of a person other than you without appropriate authorization. You may never use another person’s sign-in details to access the Site and/or Services.

2. Eligibility

You must be 18 years of age or older to use the Site. By using the Site and requesting a visit you represent that you are at least 18 years of age.

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 Blueberry Pediatrics 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.

Blueberry Pediatrics 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 Healthcare Professional whether or not they can provide care to infants and children whose parents or guardians refuse routine childhood vaccinations.

You agree that you will notify us immediately of any change in your eligibility to use the Services.  Additionally, you agree to notify us immediately of any known or suspected breach of security or unauthorized use of your registration with Blueberry Pediatrics.

3. Healthcare Professionals

We conduct  background checks on all Healthcare Professionals. All Healthcare Professionals  are licensed and in current good standing with the applicable state licensing agency in the states where they practice.

Blueberry Pediatrics does not recommend or endorse any specific tests, health care or service providers, medications, products or procedures.

Consult with your current licensed health care provider as necessary and before seeking any new treatment or before you alter, suspend or initiate any change in your medical treatment, medication routine or health care related procedure or activity. Do not disregard medical advice issued to you by your regular licensed health care provider.

4. Additional Services and Terms

Some of the Services we offer may be subject to additional terms and conditions. Your use of such Services is subject to those additional terms and conditions, which will be provided to you before the affected Services are provided. Any such additional terms and conditions are incorporated into this Agreement by reference.

5. Charges; Credit Card Billing; Additional Purchases

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. When you register on the Site, you are required to create an account by entering your name, email address, and certain other information collected by Blueberry Pediatrics. 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 Blueberry Pediatrics can charge you monthly. Blueberry Pediatrics charges your card before the beginning of the next month’s service. If you cancel your membership, Blueberry Pediatrics will stop charging your card, and you will be able to use Blueberry Pediatrics until the end of the current billing period.

Through the Services, you may also be able to purchase certain goods or additional features or other services designed to enhance the performance of the Site (“In App Purchase”). When you make an In App Purchase, you are doing so through Apple iTunes service and you are agreeing to Apple’s iTunes’ Terms and Conditions. Alternatively, depending on your operating system, you may be purchasing through the Google® Play service, and by doing so, you are agreeing to Google Play Terms and Conditions for purchases within an application.

During your use of the Site and our Services, you also may occasionally be offered incentives or merchandise either directly from us or from third-parties that are not In App Purchases. Those purchases, if you agree to them, may require you to provide credit card or other transaction data to us or to third party providers in order to procure such items. We will only collect those details, if ever, for the sole purpose of fulfilling an order for products or services that you request. We may retain your credit card details in an encrypted file, however.

6. Cancellations

If you choose to cancel your registration, all you have to do is email [email protected] Blueberry Pediatrics reserves the right, at its sole discretion, to reject users of its Site and Services, to the extent permitted by law.

7. Account Security

You are responsible for maintaining the confidentiality of your username and password that you designate during the registration process and you are fully responsible for all activities that occur under your username and password. You may not transfer or share your account username or password with anyone, or create more than one account. You will immediately notify us of any unauthorized use of your username or password or any other known or suspected breach of security. We will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer or using unencrypted email to discuss private matters with a Blueberry Pediatrics representative so that others are not able to view, record or intercept your password or other personal information. You have been informed of the risks of transmitting your personal information by an unsecured means.

Once it is received, your personal information and that of any minor for whom you are responsible is kept secure by us, in accordance with applicable law.

8. License and Limitations on Use

We grant to you a limited, personal, non-exclusive and non-transferable right and license to use the Site. Unless otherwise specified in writing, the Site is for your personal and non-commercial use. The Site, including, without limitation, the content, metadata, design, organization, compilation, look and feel, the fitness and nutrition plans, the source, object and HTML code and all other protectable intellectual property available through the Services and/or comprising the Site (the “Proprietary Materials”) are the property of Blueberry Pediatrics or the property of our licensors and are protected by copyright and other intellectual property laws. All rights regarding the Proprietary Materials not expressly granted in this Agreement are reserved by Blueberry Pediatrics. Unless you have our written consent, you may not copy, reproduce, sell, publish, distribute, display, retransmit or otherwise provide access to the Proprietary Materials to anyone. You agree not to rearrange, modify, create derivative works using or reverse engineer the Proprietary Materials. You agree not to create, scrape or display our content for any purpose. You agree not to post any content from the Site to weblogs, news groups, mail lists or electronic bulletin boards, without our written consent.

By using the Site or the Services, you represent and warrant that any personal and/or health information you provide to Blueberry Pediatrics is true and accurate and that your use:

9. INTELLECUTAL PROPERTY OWNERSHIP

Blueberry Pediatrics alone (and its licensors, where applicable) shall own all right, title and interest, including all intellectual property rights, in and to the Site and Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Site and Services. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Site shall be owned solely and exclusively by Blueberry Pediatrics, and/or, as applicable, our third-party vendors, as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights, worldwide therein and thereto, and you hereby assign to Blueberry Pediatrics any and all of your rights, title or interests in the Site or any modification to or derivative work of the Site. You shall not remove or authorize or permit any third party to remove any proprietary rights legend from the Site.

This Agreement does not constitute a sale and does not convey to you any rights of ownership in or related to the Site and Services, or any intellectual property rights owned by Blueberry Pediatrics. Blueberry Pediatrics’s name, logo and the product names and logos associated with the Site and Services are trademarks of Blueberry Pediatrics, its affiliated companies or third parties, and no right of license is granted to use them.

The materials on the Site are copyrighted by us and/or other applicable rights holders. You may download and reprint a single copy of the materials from the Site  for your own personal, noncommercial use only, provided that you keep intact all credits and copyright and other proprietary notices. Any other use of the materials is strictly prohibited without our prior written permission and the permission of the applicable rights holder(s).

10. Notice for Claims of Copyright Violations

The Digital Millennium Copyright Act of 1998 (“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 that your work has been copied and posted on our Site in a way that constitutes copyright infringement, you (or your agent) should provide our Copyright Agent with a written notice that sets forth the infringement details. To be effective, the notice must contain the following information:

Please send the written communication to our Copyright Agent either by email at [email protected]

We reserve the right, in appropriate circumstances and at our discretion, to terminate the privileges of any account holder who repeatedly infringes the copyrights or other intellectual property rights of others.

11. User Conduct

We reserve the right to terminate your account if you misuse the Site or our Services, or if you violate this Agreement including, without limitation, the following rules of conduct:

You may not:

12. DISCLAIMERS OF WARRANTIES

YOU USE THE SITE AND THE SERVICES  AT YOUR OWN RISK. YOU FURTHER ACKNOWLEDGE THAT ANY VISIT THAT YOU SCHEDULE VIA THE SITE IS AT YOUR OWN RISK. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, TIMELINESS OR EFFICACY OF THE CONTENT OF THE SITE, AND ASSUME NO LIABILITY OR RESPONSIBILITY TO YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE FOR ANY ERRORS, MISTAKES, OR INACCURACIES IN SUCH CONTENT OR IN THE SERVICES PROVIDED BY US, INCLUDING THE SERVICES, INFORMATION AND ADVICE PROVIDED BY A HEALTHCARE PROFESSIONAL OR THROUGH OUR SITE. YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SITE ANY HEALTHCARE PROFESSIONALS AND THE CONTENT AND SERVICES AVAILABLE THROUGH THE FOREGOING IS ON AN “AS-IS”, “AS AVAILABLE” BASIS AND WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT, AND MATERIALS AVAILABLE THROUGH THE SITE, INCLUDING WITHOUT LIMITATION THE AVAILABILITY, USE, OR RESULTS OF SERVICES PROVIDED BY ANY HEALTHCARE PROFESSIONALS. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN OUR LIABILITY AND RESPONSIBILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.

13. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SITE OR SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON OR THROUGH THE SITE OR, SERVICES OR ANY WEBSITES LINKED TO THE SITE; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SITE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS, SERVICES OR CONDUCT OF ANY THIRD-PARTY ON OR THROUGH THE SITE; OR (F) ANY OTHER MATTER RELATING TO THE SITE OR SERVICES. IN NO EVENT SHALL THE COMPANIES’ TOTAL LIABILITY TO YOU OR ANY INDIVIDUAL OR ENTITY  FOR WHOM YOU ARE RESPONSIBLE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE – OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO THE COMPANIES IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, THE COMPANIES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.

14. DISCLAIMERS REGARDING  HEALTHCARE PROFESSIONALS

RELIANCE ON ANY INFORMATION PROVIDED BY ANY HEALTH CARE PROFESSIONAL ON OR THROUGH THE SITE OR SERVICES IS SOLELY AT YOUR OWN RISK. Blueberry Pediatrics MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, ABILITY OR THE EFFICACY, ACCURACY, COMPLETENESS, TIMELINESS OR RELEVANCE OF THE INFORMATION PROVIDED BY ANY HEALTHCARE PROFESSIONAL AND/OR THE SERVICES PROVIDED BY SAID HEALTHCARE PROFESSIONALS OR BY THIRD PARTIES FEATURED ON OR THROUGH THE SITEOR SERVICES . HEALTHCARE PROFESSIONALS ARE RESPONSIBLE FOR COMPLYING WITH REGULATORY AND LOCAL REQUIREMENTS FOR MALPRACTICE AND LIABILITY INSURANCE. ALL INTERACTIONS WITH HEALTHCARE PROFESSIONALS ARE BETWEEN YOU AND THE LICENSED HEALTHCARE PROFESSIONAL. BY USING THE SITE OR SERVICES,  YOU AGREE NOT TO HOLD Blueberry Pediatrics LIABLE IN ANY WAY FOR ANY MALPRACTICE OR SUBSTANDARD TREATMENT THE HEALTHCARE PROFESSIONAL MAY RENDER TO YOU OR ANY MINOR FOR WHOM YOU ARE RESPONSIBLE. IN NO EVENT SHALL Blueberry Pediatrics BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU, ANY MINOR FOR WHOM YOU ARE RESPONSIBLE, OR ANYONE ELSE IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM YOUR USE OF ANY INFORMATION, PROGRAM OR SUGGESTION PROVIDED TO YOU BY A HEALTHCARE PROFESSIONAL OR COMMUNICATIONS OR MEETINGS BETWEEN OR AMONG YOU, ANY MINOR FOR WHOM YOU ARE RESPONSIBLE, AND ANY PHYSICIANS, MEMBERS OR ANY OTHER PERSONS YOU MEET THROUGH THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH HEALTHCARE PROFESSIONALS.  FURTHER, 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 HEALTHCARE PROFESSIONAL.

15. Indemnification

You agree to defend, indemnify, and to hold harmless the Companies, together with its officers and directors, from any and all liabilities, penalties, claims, causes of action, and demands brought by third-parties (including the costs, expenses and attorneys’ fees on account thereof) arising, resulting from or relating to: (a) your use of the Site or Services  or your inability to use the Site or Services; (b) an allegation that you violated any representation, warranty, covenant or condition in this Agreement; (c) your intentional or negligent misrepresentation or misuse confidential or protected information. Your agreement to defend, to indemnify, and to hold the Companies (and their officers and directors) harmless applies whether any claim against the Companies is based in allegations of violation(s) of law or contract or tort (including strict liability), and regardless of the form of action, including but not limited to your violation of any third-party rights, a claim that the Site and/or Services  caused damage to you or to any third party and/or your use and access to the Site and/or Services. This indemnification section shall survive your termination of or cessation of use of the Site and Services.

16. Third-Party Web Sites, Products and Services

The Site and/or Services  may link to or promote websites, products and/or services from other companies, or offer you the ability to download software from other companies. You agree that Blueberry Pediatrics is not responsible for, and does not control, those websites or any third-party products or services. Blueberry Pediatrics encourages you and any minor for whom you are responsible to be aware of this when you leave the Site or click on links controlled by third parties, and to read the legal notices and privacy policies of each and every location you visit. Your use (or that of any minor for whom you are responsible) of a third-party product, service or website will be subject to such third party’s terms of use, privacy policy and any other applicable terms and conditions.

17. Governing Law and Choice of Forum

This Agreement contains the final and entire agreement  regarding your use of the Site and the Services for yourself, a member of your household or for any minor for whom you are responsible, and supersedes all previous and contemporaneous oral or written agreements regarding your use of the foregoing. The provisions of this Agreement shall be severable, and if any provision of this Agreement is held to be invalid or unenforceable, it shall be construed to have the broadest interpretation, which would render it valid and enforceable. No amendments, modifications or waivers to this Agreement shall be valid unless in writing and signed by all Parties. We may discontinue or change the Site and/or Services, or its/their availability to you, at any time. This Agreement is personal to you, which means that you may not assign your rights or obligations under this Agreement to anyone. You agree that this Agreement, as well as any and all claims arising from this Agreement will be governed by and construed in accordance with the laws of the State of California, United States of America, without regard to any conflict or choice of law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement or in any way related to the Site will be an appropriate federal or state court located in Los Angeles, California. Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in California under the rules of the American Arbitration Association, except that either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The parties agree to the personal and subject matter jurisdiction and venue of the courts located in California for any action related to this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

18. Assignments

Blueberry Pediatrics may assign its rights and obligations under this Agreement. This Agreement will inure to the benefit of Blueberry Pediatrics’s successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under the Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

19. Promotions and Offers

We may, from time to time, offer certain promotions as part of our services to users, and we encourage you to participate. However, unless explicitly stated otherwise, MediCare or Medicaid/MediCal beneficiaries are not eligible to participate in any promotions or other offers. By accepting any promotional offer, you certify that you are not a MediCare or Medicaid/MediCal beneficiary and agree to be bound by all of the following additional terms.

We reserve the right to send particular promotions to particular users and other individuals, subject to applicable laws. We may use any personal information you provide to us (including your email address), to provide you (by email or otherwise) with information regarding our contests and promotions, as further described in our Privacy Policy and in compliance with applicable law. You agree that Blueberry Pediatrics may communicate your personal information to a Medical Practice that you select, and at your direction, in connection with any healthcare services provided by that Medical Practice and its Health Care Professionals.

Price discounts cannot be used together or combined with other discount offers or promotional offers. Promotional offers are intended for the addressed recipient only and cannot be transferred. If you are not the intended recipient, then the offer is null and void. We may request further information from you if you wish to participate in our promotions and offers. Participation in these promotions is completely voluntary. Therefore, you have the choice to decline to participate in any promotion where you are required to provide further information about yourself.

We are not responsible for any unauthorized promotions and offers offered by third-parties through the Site.