Spruce Care Messenger – Terms of Service for Patients

Last Modified: 21 April 2020

SPRUCE DOES NOT PROVIDE MEDICAL SERVICES OR ADVICE, INCLUDING VIA THE PLATFORM. IF YOU ARE (OR SOMEONE ELSE IS) EXPERIENCING A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.

YOU ACKNOWLEDGE AND AGREE THAT COMMUNICATION OCCURRING THROUGH THE PLATFORM OR ENABLED BY THE PLATFORM SHOULD NOT BE USED FOR EMERGENCIES.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES OR OUR PLATFORM.

I. Introduction

These terms of service (the "Terms of Service for Patients") describe your rights and responsibilities when using the Spruce Care Messenger application (the "App" when accessed via mobile application, the "Website" when accessed via web browser, or the "Platform" when considered as a whole or accessed via any other means) as part of a coordinated service to connect and communicate with your medical practice group or other health care provider organization ("Provider"). These Terms of Service for Patients, our Privacy Policy, and any other terms agreed to in writing by you and us (referred to collectively as the "Terms") govern your use of the Platform. Your Provider's use of the Platform, or use of the Platform by any entity in the role of a medical practice group or other health care provider organization, will be governed by a different set of terms. By accessing or using the Platform, you acknowledge that you have read, understood, and agreed to be legally bound by and comply with these Terms. If you do not agree with any of these Terms, you may not use the Platform. You understand and agree that satisfying the above requirements does not guarantee that you will access or use services through the Platform.

In these Terms, the terms "you" and "yours" refer to the person, including any caregivers, on whose behalf these Terms are entered into. The terms "we", "our", "us", and "Spruce" collectively refer to Spruce Health, Inc. Even though you may have arrived to the Platform through a website or mobile application operated or controlled by a third party, including by an affiliate of Spruce, you understand and agree that these Terms are entered into between you and Spruce. You also understand and agree that the Platform and any services provided through these Terms are provided solely by Spruce, and no other parent, subsidiary, or affiliate of Spruce. Any person using or accessing the Platform for or on behalf of you represents and warrants that he or she has the authority to download the App or use the Website and agree to these Terms on your behalf.

If you downloaded the App from the Apple App Store: These Terms incorporate by reference Apple's Licensed Application End User License Agreement (https://www.apple.com/legal/internet-services/itunes/dev/stdeula/), for purposes of which you are the "end user".

If you downloaded the App from the Google Play Store: These Terms incorporate by reference Google's Android Market Terms of Service (https://www.google.com/intl/en_gb/mobile/android/market-tos.html).

If you accessed the Platform through the Website: These Terms apply.

II. Access; Account Registration

Conditioned upon your continued compliance with these Terms, Spruce grants you the right to access and use the Platform. To access and use all or part of the Platform, you are required to register and create an account. Any registration information you provide to Spruce must be accurate, current, and complete. Your access credentials, such as your username and password, cannot be shared with or used by any person or entity except for you. You will be responsible for keeping your account, including access credentials, secure from unauthorized third-party access or use, and you must promptly notify Spruce of any suspected or actual breach or unauthorized use thereof. You are responsible for all access to and use of the Platform using your credentials, including all acts and omissions. Spruce may immediately suspend your account and access to the Platform if you violate, or Spruce reasonably suspects that you have violated, these Terms. Upon termination of your account, your access to the Platform will be terminated with immediate effect.

III. Modification of the Terms

We reserve the right, in our sole discretion, to amend these Terms, in whole or in part, at any time and for any reason, without penalty or liability to you or any third party. If we determine our changes to these Terms are material, we will make reasonable efforts to notify you and/or your Provider of such changes. However, you should check the Terms regularly to determine if any changes have been made. You can determine when the Terms were last revised by referring to the "Last Modified" notation above. If you use the Platform after the amended Terms have been posted, you will be deemed to have agreed to the amended Terms. If any of the provisions of these Terms are not acceptable to you, your sole and exclusive remedy is to discontinue your use of the Platform.

IV. Description of Spruce

A. Platform

You understand and agree that Spruce makes the Platform available to facilitate communication between you, your Provider, and other entities. Such communications may include, but are not limited to, secure messaging, voicemail, file sharing, and video calls. The Platform enables you, your Provider, and other entities to communicate information, including health information (such as past or present health conditions, medications, ailments, and images) and personal information (such as names, locations, and demographic information). The Platform does not provide for emergency calling services (e.g., 911); however, Spruce VoIP phone services support emergency service calling in accordance with the terms available at https://www.sprucehealth.com/e911.

B. Unsecure Communications

You understand and agree that the Platform enables communications and other data transmissions across multiple channels and to multiple endpoints, a number of which involve transmission that does not occur exclusively through and on the Platform ("Unsecure Communications"). Unsecure Communications include, but are not limited to, email, SMS text messages, e-faxing, and voice communications, which may include transmission and/or storage via unsecured networks, devices, or channels. Unsecure Communications may not be encrypted or otherwise protected by Spruce or third parties and could be intercepted or otherwise accessed by unauthorized third parties. In no event will Spruce have any liability to you or any other person or entity for any such unauthorized access.

V. Your Responsibilities and Acknowledgment

As a condition of your use of the Platform, you agree to the following:

VI. Requirements for Use

You must have a compatible mobile device or computer, access to the Internet, and certain necessary software and hardware, as we may stipulate from time to time in our sole discretion, in order to use the Platform. Fees and charges may apply to your use of the mobile services and to the Internet. Spruce is not responsible for those or any other fees.

VII. Restrictions on Use

You will not use, or encourage or permit others to use, our Platform except as expressly permitted in these Terms. You will not, and will not encourage or permit others to:

VIII. Intellectual Property

A. Ownership, License, and Use

As between Spruce and you, Spruce is the sole and exclusive owner of all right, title, and interest in and to the Platform and its general content, features, and functionality (including, without limitation, all information, software, text, displays, images, video, audio, selection, arrangement, and look and feel), and all intellectual property rights therein, and any suggestions, ideas, or other feedback provided by you which relates to the Platform. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Platform shall be owned solely and exclusively by Spruce or its licensors, including all intellectual property rights therein. Subject to your compliance with these Terms, Spruce grants you an internal, limited, revocable, nonexclusive, and nontransferable license to view, download, access, and use the Platform and its content, solely for your internal use. You are not permitted to reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way, in whole or in part, any such content for commercial use. No other right, title, or interest in or to the Platform is transferred to you, and all rights not expressly granted are reserved by us, our affiliates, or our licensors. Notwithstanding the foregoing and except as set forth in Section ‎VIII.B, Spruce will not have any right, title, or interest in or to any Health Data (as defined below) or User Data (as defined below).

Certain names, logos, and other materials displayed in and through the Platform may constitute trademarks, trade names, service marks, or logos ("Trademarks") of Spruce or its affiliates. You are not authorized to use any such Trademarks without the express written permission of Spruce or its affiliates. Ownership of all such Trademarks and the goodwill associated therewith remains with us or our affiliates.

B. User Data and Health Data

The Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations and amendments from time to time shall be referred to as "HIPAA". The Platform may allow you, your Provider, or other entities (collectively, "These Entities") to enter, submit, or otherwise transmit to Spruce information or other data related to any of These Entities. The Platform may also contain information or other data, related to any of These Entities, that was created on the Platform by any of These Entities. All such data is "User Data" except such data that would qualify, in context, as PHI were it the property of a Covered Entity, as those terms are defined in HIPAA ("Health Data").

You hereby grant and agree to grant to Spruce, our service providers, and our successors and assigns the fully transferable and sublicensable right and license to use, copy, produce, reproduce, modify, create derivative works of, analyze, perform, display, distribute, and otherwise disclose to third parties any de-identified Health Data and User Data for the purposes of: (i) providing services to you; (ii) conducting research or analyses of such data; and (iii) designing, developing, implementing, modifying, and/or improving new, current, or future features, products, and services of Spruce using such data. Spruce may have a separate agreement with your Provider, such as a Business Associate agreement under HIPAA, which may limit the effect of the terms of this section.

In addition to the foregoing, our collection, usage, and disclosure of any such User Data and Health Data will be subject to our Privacy Policy.

IX. Payment

When you submit any User Data or Health Data for purposes of receiving Provider services, you agree to pay all fees due to your Provider. Your Provider may send requests for and collect payments through the Platform. You will see a prompt for your payment details, such as your credit card information. By entering your payment information and submitting your request, you authorize us, our affiliates, or our third-party payment processors to charge the amount due.

You understand and agree that you are responsible for all fees due to receive Provider services, including any fees charged by such Providers and any applicable co-insurance or co-pay amounts. Amounts collected by Spruce will include fees charged by Providers for their services. In the event that your credit card expires or Spruce, our affiliates, or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method.

X. Privacy

Spruce understands the importance of confidentiality and privacy regarding your information. Please see our Privacy Policy at https://www.sprucehealth.com/privacy for a description of how we may collect, use, and disclose your information in connection with the Platform.

XI. Third-Party Materials and Linked Sites

Spruce does not provide any recommendation, advice, certification, approval, endorsement, or other specific knowledge or statement related to the fitness, quality, or any other aspect of any Provider, third-party organization, or other entity, or of the goods or services of any such Provider or third-party organization or entity, with regard to any health care purpose, regardless of whether the Provider or third-party organization or entity may use the Platform or have any other association with Spruce. Any references or materials related to such a Provider or third-party organization or entity that may be present on the Platform are solely for your convenience and are used at your own risk. We are not liable to you in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with the use of or reliance on Providers, third-party organizations, or entities, or their goods or services.

The Platform may also contain hyperlinks or references to other websites or other services ("Linked Sites") operated by third parties. The Linked Sites may not be under our control; therefore, we are not responsible for the information, products, or services described thereon, or for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. We are providing these Linked Sites to you only as a convenience, and the inclusion of any link does not necessarily imply endorsement of the Linked Site or any association with its operators. Your use of these Linked Sites is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with use of or reliance on information contained in or provided to Linked Sites.

You may have arrived to the Platform through a Linked Site, including a Linked Site controlled by a parent, subsidiary, or affiliate of Spruce. You understand and agree that we are not responsible for the information, products, or services described on those Linked Sites and that only these Terms will apply to your use of or access to the Platform.

XII. Disclaimer

YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. SPRUCE AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, AND AGENTS (COLLECTIVELY "RELATED PERSONS") DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH RESPECT TO THE PLATFORM, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, SECURITY, ACCURACY, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING, SPEED OF DELIVERY, OR ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE PLATFORM IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS (E.G., 911) BY VOICE OR SMS TO ANY EMERGENCY SERVICES. NEITHER SPRUCE NOR ITS RELATED PERSONS WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU WILL HOLD SPRUCE AND ITS RELATED PERSONS HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE PLATFORM TO CONTACT EMERGENCY SERVICES.

WITH RESPECT TO OUR VOIP PHONE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, CALLS USING OUR 911 DIALING SERVICE ARE ANSWERED OR ADDRESSED BY ANY LOCAL EMERGENCY RESPONSE CENTER. WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY FOR THE CONDUCT OF SUCH LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALLING CENTER. WE RELY ON THIRD PARTIES TO ASSIST US IN ROUTING 911 DIALING CALLS TO LOCAL EMERGENCY RESPONSE CENTERS AND TO A NATIONAL EMERGENCY CALLING CENTER. WE DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT. YOU AGREE THAT WE MAY NOT BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO OUR 911 DIALING SERVICE, UNLESS SUCH CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SPRUCE NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE PLATFORM. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, OR USEFULNESS OF THE PLATFORM. FURTHERMORE, SPRUCE DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, OR THAT THE USE OF THE PLATFORM AND/OR INFORMATION OBTAINED THROUGH THE PLATFORM WILL NOT CAUSE ANY DAMAGE TO YOUR MOBILE PHONE OR COMPUTER OR LOSS OF DATA.

XIII. Limitation of Liability

To the fullest extent permitted by applicable law and except as set forth in this Section, Spruce, its Related Persons, and licensors will not be liable to you or to any party under any legal or equitable theory, whether in tort (including negligence), contract, strict liability, or otherwise, for any indirect, punitive, special, incidental, or consequential loss or damage, including lost profits, loss of data or loss of goodwill, service interruption, mobile phone damage, or system failure, or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress, including death, arising out of or in connection with any access or use of (or inability to use) the Platform. This is true even if Spruce or its Related Persons have been advised of the possibility of such damages or losses. To the fullest extent permitted by applicable law and subject to this Section, in no event shall the total liability of Spruce and its Related Persons for any damages, claims, or losses arising under these Terms exceed the total amount of payments actually paid by you to us, if any, in the preceding twelve (12) months prior to the date the liability first arose.

XIV. Modifications to the Platform

Spruce reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Platform, or any portion thereof, with or without notice. You agree that Spruce shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform. Without limiting the foregoing, we will make reasonable efforts to notify you in advance of any discontinuation of the Platform in its entirety.

XV. Suspension and Termination Rights

The Terms will remain in full force and effect as long as you continue to access or use the Platform. You may terminate the Terms by discontinuing use of the Platform. Your permission to use the Platform automatically terminates if you violate these Terms.

Except for termination or suspension by us subject to Section ‎II, we may terminate or suspend any of the rights granted by these Terms and your access to our Platform for any reason upon thirty (30) days written notice to you. Notwithstanding the foregoing, we may immediately terminate these Terms and your access to our Platform if required by applicable regulatory authorities or if we determine that any change in any applicable federal, state, or local government laws, rules, or regulations would render unlawful the conduct under these Terms of you or us.

The following Sections survive the expiration or termination of these Terms for any reason whatsoever: ‎VII (Restrictions on Use), ‎XII (Disclaimer), ‎XIII (Limitation of Liability), ‎XVI (Governing Law; Dispute Resolution; Arbitration; Class Action Waiver), and ‎XVII (Miscellaneous).

Subject to applicable law, Spruce reserves the right to maintain, delete, or destroy all communications and materials posted or uploaded to the Platform in its sole discretion.

XVI. Governing Law; Dispute Resolution; Arbitration; Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND SPRUCE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SPRUCE.

A. Governing Law

The Platform is controlled and operated by us from the United States, and is not intended to subject us to the laws or jurisdiction of any state, country, or territory other than that of the United States. These Terms will be governed by the laws of the State of California without regard to conflicts of law principles.

B. Arbitration Agreement

You and Spruce agree that all claims and disputes relating in any way to your use of our Platform, or arising out of or in connection with these Terms, shall be resolved by binding arbitration, to the fullest extent permitted by applicable law, on an individual basis, except for any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, or any dispute already pending at the time you first agree to these Terms. You also agree that any arbitration will take place in San Francisco, California.

C. Waiver of Jury Trial

IN THE EVENT ARBITRATION IS CONTRARY TO APPLICABLE LAW, YOU AND SPRUCE WAIVE ANY CONSTITUTIONAL OR STATUTORY RIGHT TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Spruce are instead electing to have claims and disputes resolved by arbitration. Arbitration is the referral of a claim or dispute to one or more persons charged with reviewing the claim or dispute and making a final binding determination to resolve it instead of having it decided by a judge or jury in court. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

D. No Class Arbitrations, Class Actions, or Representative Actions

YOU AND SPRUCE AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY INDIVIDUAL OR OTHER GROUP. UNLESS BOTH YOU AND SPRUCE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S) OR DISPUTE. ANY RELIEF AWARDED CANNOT AFFECT OTHER SPRUCE USERS OR CUSTOMERS.

E. Arbitration Rules

The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Any arbitration between you and Spruce will be initiated through the American Arbitration Association ("AAA") and will be governed by the AAA Consumer Arbitration Rules. The AAA Rules and filing forms are available at www.adr.org.

XVII. Miscellaneous

The Terms set forth the entire understanding and agreement between you and us with respect to the subject matter hereof. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect. Headings are for reference only and in no way define, limit, construe, or describe the scope or extent of such section. Our failure to act with respect to any failure by you or others to comply with these Terms does not waive our right to act with respect to subsequent or similar failures. You may not assign or transfer your rights or obligations under these Terms without our prior written consent, and any assignment or transfer in violation of this provision shall be null and void. Except as otherwise set forth in these Terms: (a) any notice given by us to you will be provided via email to the email address used to register your account and/or, in our sole discretion, to the email address of the person listed as your Provider's administrator on the Platform, and will be deemed to be both written and fully given on the date of sending; and (b) any notice given by you to us will be provided as set forth in Section ‎XIX.

XVIII. Copyright Infringement Claims

Spruce reserves the right to remove any content or any other material or information available on or through our Platform, at any time, for any reason. Spruce otherwise complies with the provisions of the Digital Millennium Copyright Act ("DMCA") applicable to Internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement. This Section describes the procedure that should be followed to file a notification of alleged copyright infringement with Spruce.

Notification of Claimed Copyright Infringement

If you have objections to copyrighted content or material made available on or through our Platform, you may submit a notification to us as set forth in Section XIX, with such notification marked with attention to our Designated Agent, the Spruce Compliance Officer.

Any notification to Spruce under 17 U.S.C. § 512(c) alleging copyright infringement must include the following information:

XIX. Contact Information

If you have any questions or concerns, or if you wish to provide notice to us under these Terms, please contact us by one of the following means:

Any notice required or permitted to be given by you to us under these Terms will be given in writing by certified mail with return receipt requested, overnight delivery by a nationally recognized carrier, or by email upon our confirmation of receipt, and will be deemed fully given on the date of actual delivery.