Client Agreement
This COVID-19 Home Test Self-Collection Client Agreement along with the authorization and consent form linked below (collectively the “Agreement”) sets forth the contractual rights and obligations for three separate relationships: (1) the relationship between Directcare Services, LLC (“Directcare”) and the undersigned Client (“Client”) related to Directcare’s provision of a home testing kit to Client which will be utilized by Client to facilitate self-collection of a nasal swab specimen for COVID-19 testing in accordance with a video tutorial or a telehealth encounter; and (2) the relationship between Client and the Directcare technology platform (the “Platform”); and (3) the separate and independent relationship for the telemedical or other medical/healthcare services provided by independent physicians, phlebotomists, lab technicians and/or laboratories (each a “Professional Service Provider” and collectively the “Professional Service Providers”) directly to Client identified above (the “Health Services”). Although the Health Services are facilitated and enabled by and through the Platform, they are provided pursuant to a direct Professional Service Provider-Client relationship(s) over which Directcare has no control, direction, or management – and for which Directcare is not responsible. Each of Client, Directcare and Guarantor (as defined below) may be referred to herein as a “Party,” and collectively as the “Parties.” As used in this Agreement, “you” or “yours” shall refer to a Client or, if this Agreement is executed by a Guarantor (as defined below), to such Guarantor.
BY CLICKING “I AGREE” YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SERVICES. YOUR USE OF THE SERVICES IS SUBJECT AT ALL TIMES TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS, RULES, AND REGULATIONS. IF AT ANY TIME YOU NO LONGER WISH TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE PLATFORM SERVICES (AS DEFINED BELOW). FOR THE PURPOSES OF THIS AGREEMENT, “YOU” AND “USER” SHALL MEAN THE INDIVIDUAL TO WHOM THE USERNAME AND PASSWORD USED TO ACCESS THIS AGREEMENT IS ASSIGNED AND HIS, HER OR ITS AFFILIATES, EMPLOYEES, AGENTS AND PERMITTED SUCCESSORS AND ASSIGNS.
This Agreement is an agreement between the Platform and you. The Platform offers technological tools that enable end-user patients to find Professional Service Providers and Professional Service Providers to find end-user patients (the “Platform Services”). While the Platform hosts and facilitates the interaction, the relationship between Clients and Professional Service Providers are, in every case, independent and the services rendered are exclusively the responsibility of the Professional Service Provider and not of Directcare.
This Agreement applies to your use of the Platform (including any content therein) and the separate Health Services provided by the Professional Service Provider(s) as well as to any new versions, updates, supplements, and support services Directcare makes available through the Platform Services and/or Platform. By using the Platform, irrespective of whether you ultimately elect to receive Health Services, you accept these terms. If you do not accept them, you may not use the Platform Services or the Platform. As further described below, using the Platform also operates as your consent to the transmission of certain standard computer information for Internet-based services.
Subject to the terms of this Agreement, Directcare grants you, and you hereby accept from Directcare, a limited, nonexclusive, nontransferable license (without a right of sublicence) to, access and use the Platform Services and/or Platform and any user documentation related to the Platform Services that is made available to you from time to time by Directcare, exclusively for your internal use, subject to the following conditions. Directcare reserves the right, for any reason, in its sole and absolute discretion to terminate, change, suspend or discontinue any aspect of the Platform Services (including, without limitation, content, features, hours of availability, or pricing), your access to or use of the Platform Services, or remove any of your content, at any time, for any reason or for no reason at all, without notice and without penalty. DIRECTCARE MAY, AT ANY TIME AND FROM TIME-TO-TIME, CHANGE THE TERMS OF THE AGREEMENT. ANY CHANGES WILL BE POSTED ON THE SITE. IF YOU DO NOT ACCEPT THE TERMS OF ANY MODIFICATION TO THIS AGREEMENT, YOUR ONLY RECOURSE IS TO TERMINATE THE AGREEMENT BY SENDING A TERMINATION NOTICE TO DIRECTCARE PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT. ANY TERMINATION WILL BE EFFECTIVE UPON THE DATE DIRECTCARE RECEIVES SUCH NOTICE. CONTINUED USE OF THE PLATFORM SERVICES BY USER WILL CONSTITUTE COMPLETE ACCEPTANCE OF THE THEN-CURRENT VERSION OF THIS AGREEMENT POSTED ON THE DIRECTCARE SITE. In the event of any termination of this Agreement, any provisions that by their nature show they were intended to survive such termination, including without limitation, provisions relating to ownership, confidentiality, indemnification, disclaimers and limitations of liability, shall survive any such termination.
DISCLAIMER OF WARRANTY. You understand that the Platform and Platform Services may not accurately process the data you provide about yourself, and the reports provided through the Platform or the Platform Services, if any, may not be accurate. Directcare is not obligated to update or modify, in any manner, this or any later version of the Platform or the Platform Services. Furthermore, Directcare is not responsible to provide any support to you in connection with your use of the Platform or the Platform Services. To the maximum extent permitted by applicable law, Directcare and its suppliers provide the Platform Services, and any technical advice or support services related thereto, AS IS AND WITH ALL FAULTS, and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of non-infringement, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Platform and the Platform Services and the provision of or failure to provide technical or other support services.
LIMITATION OF LIABILITY. In no event shall Directcare, its agents, representatives, employees, contractors, and all affiliated entities or personnel be liable for any direct, indirect, consequential, incidental, exemplary, punitive special damages or any damages whatsoever whether arising from breach of warranty, breach of contract, negligence or any other legal theory, whether in tort or contract, even if such party has been apprised of the likelihood of such damages occurring, including without limitation, damages from any delay, interruption of business, loss of income or opportunities, loss of use of the Platform Services, loss of data, cost of recreating data or cost of capital. In no event shall Directcare, its agents, representatives, employees, contractors, and all affiliated entities or personnel be liable for the Platform Services or the act or omission of any Professional Service Provider. Your sole and exclusive remedy against Directcare, its agents, representatives, employees, contractors, and all affiliated entities or personnel for any harm under this Agreement shall be to cease using the Platform Services. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy. Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to certain users.
Client shall defend, indemnify and hold harmless Directcare and its officers, directors, agents, representatives and employees from and against any claims that arise from or relate to your breach of this Agreement or any other term required as a condition of use of the Platform or the Platform Services, as well as for claims against a Professional Service Provider for claims related to care provided.
TERMS AND CONDITIONS
1. Client Responsibilities: I acknowledge and understand that I am voluntarily consenting to self-administer the COVID-19 at home test and to becoming a Client or subscriber of the Platform and that this Agreement is non-transferable and will govern my relationship with the Platform for technology provided to facilitate provision of the Health Services, as well as my separate relationship with (a) Professional Service Provider(s) utilizing the Platform for all Health Services provided for my care. I acknowledge and understand that the provision by Directcare of the COVID-19 at home test kit and video and the Platform are separate from and not responsible for the Health Services provided by any Professional Service Provider, and that the Platform does not manage, control, direct, or participate in any way in the delivery of the Health Services, which are provided by independent third party Professional Service Providers. I acknowledge and understand that this Agreement does not provide health insurance coverage, is not a contract of insurance and that it facilitates only access to the particular Health Services delivered by Professional Service Provider(s). I acknowledge and understand that I am responsible for any charges incurred for care received outside of Directcare, including but not limited to any healthcare services. In order to receive the best possible care, I agree to be actively involved in my care decisions and to disclose all relevant information to achieve my health goals. I also agree to inform my Professional Service Provider(s) of care received elsewhere. I agree to maintain insurance coverage to obtain hospital or catastrophic services if needed. I acknowledge that, in an emergency, I should call 911 immediately before Directcare and seek any needed emergency care without waiting for Directcare to respond.
2. Health Information: I acknowledge and understand that Directcare maintains a record of my health information, and protects the privacy of my health information as per the terms of the accompanying Online Privacy Policy.
3. Termination: This Agreement shall become effective on the first date that Platform Services are provided and shall continue in full force and effect unless and until terminated by Client or Directcare. This Agreement may be terminated by Client at any time and for any reason, or for no reason, by sending a written Platform Services Cancellation Form by email to hello@directcare.us. Upon termination, Directcare is no longer responsible for provision of any Platform Services or for my care. Such notice will be effective on the date actually received. Should I terminate the Agreement after Directcare has begun to provide Platform Services, I will be responsible for payment for all Platform Services rendered by Directcare through the date on which Platform Services actually terminate. I understand that if my account is overdue, I am responsible for resolving the outstanding balance prior to my cancellation of the Platform Services cancellation. I acknowledge and understand that Directcare reserves the right to terminate this Agreement and discharge me as a Client at any time with or without cause, including failure to pay bills and refusal to cooperate with any other applicable terms. I will be provided with written notice of termination thirty (30) days in advance of the effective date thereof by email. Directcare will not terminate this Agreement solely on the basis of my health status.
4. Financial Responsibility: I hereby acknowledge that payment in full for Platform Services rendered (or for any damages or claims under Section 3 above) is due upon receipt of the invoice. The Platform Services may be discontinued on either a temporary or permanent basis if the balance is not paid as provided for herein. Guarantor (as defined in Section 6 below), if any, understands and agrees that he/she is accepting financial responsibility for this debt and will be required to pay for all Platform Services provided by Directcare. Client and Guarantor agree that they are jointly and severally responsible to pay any and all costs and expenses incurred by Directcare in the collection of this debt, including but not limited to court costs, attorneys’ fees, and costs of appeal.
5. Terms and Conditions: Directcare reserves the right to amend the prices, terms, and conditions of this Agreement without advance notice to Client/Guarantor, which may be given by email or directly on the Platform. Subject to applicable laws, rules, and regulations, this Agreement represents the entire agreement of the parties hereto regarding the Platform Services provided by Directcare. No other amendments or modifications may be made by any Party without notice to and acceptance in writing by all the Parties.
6. Binding. This is part of a legally binding contract by and among the Client and the Guarantor, if any, on the one hand, and Directcare, on the other. In the event that you receive Health Services through a Professional Service Provider through the Platform, this Agreement governs our relationship continuously throughout its term. This Agreement incorporates by reference as if set forth here all other documents that we provide or ask you to complete, including without limitation our Online Privacy Policy.
7. Consent for Services. Pursuant to the attached authorization and consent form, Client agrees to proceed with the COVID-19 at home testing after the weighing the risks and benefits. In addition, Client is voluntarily seeking to use the Platform and the Platform Services that Directcare provides in order to obtain Health Services through a network of Professional Service Providers. Client is seeking Health Services for the purpose of medical diagnosis and care, and, pursuant to independent agreements with (a) Professional Service Provider(s), is separately providing its consent to all related examinations, treatments, and/or diagnostic procedures as may be deemed advisable by any Service Provider. Client acknowledges that Professional Service Provider(s) is(are) independent, separate, and not part of Directcare or the Platform, are not agents or representatives of Directcare, and are operating independently in direct relationship to Client.
8. Notice of Charges. You are responsible for the payment of the fees for the Platform Services as described in this Agreement (the “Fees”). The Fees do not include any fees for Health Services. You agree that payment of the Fees is your sole and exclusive responsibility. A late fee of ten percent (10%) per annum will accrue on any unpaid balances delinquent for more than thirty (30) days. Delinquent accounts will be referred for collection. Bank charges on returned checks in the amount of $50.00 per check are the Client’s responsibility.
9. No Guaranty of Results. You acknowledge and agree that there can be no guaranty of the accuracy and/or efficacy of any Health Services you receive as facilitated by the Platform Services. The efficacy and/or accuracy of the Health Services or lack thereof does not and will not relieve you of your obligation to pay the Fees due to Directcare pursuant to this Agreement.
10. Agreement to Pay Fees. In exchange for receiving the Platform Services described in this Agreement, you agree to pay us our Fees. You agree to prepay the Fees via cash, check, credit card or any other method as we request and agree. You acknowledge that the Fees may not be covered or reimbursable by Medicare or any other insurance, and that, to the extent you have the right to coverage or reimbursement from other sources, Directcare has no responsibility for submitting bills or interacting with such sources.
11. Joint and Several Obligation; Independent Obligation. If applicable, the Guarantor is directly, jointly, and severally liable to Directcare for the Fees incurred by Client in the course of the provision of the Platform Services at the rates that we bill and request. The obligations of the Guarantor hereunder are direct and primary and are independent of Client’s obligations, and a separate action may be brought against the Guarantor irrespective of whether an action is brought against Client or any other financially responsible party or whether Client or any such other financially responsible party is joined in such action. The Guarantor’s liability hereunder shall not be contingent upon the exercise or enforcement by Directcare of any remedies it may have against Client or any other financially responsible party or the enforcement of any lien Directcare may at any time possess. Any release that may be given by Directcare to Client or any other financially responsible party shall not release the Guarantor.
12. Credit Card Authorizations. If you pay by credit card, you authorize us to charge your credit card for Fees due on account of Platform Services rendered in accordance with the terms and conditions of this Agreement. You understand and acknowledge that any charges made to your credit card under this Agreement will constitute a “final sale.” The amount to be charged to the credit card shall be determined in accordance with the payment terms of the Agreement. Notwithstanding any rejection or declination of the credit card for any reason, you agree to be liable and financially responsible for any and all Fees and charges due for the Platform Services. If there arises a dispute concerning a credit card, we may immediately suspend acceptance of the credit card and demand payment in full of all amounts due in cash, by electronic transfer or by certified check. If there is a limitation on individual transactions, we may divide the total charge into incremental portions in order to process the charge on the credit card.
13. Term and Termination of Services. This Agreement shall have an initial term of one (1) year, and shall thereafter automatically renew for additional one (1)-year terms until terminated in accordance with the Agreement. We may terminate the Agreement for any reason, at any time, subject to applicable law. Without limiting the foregoing, we may terminate the Agreement in the following situations: if you were not truthful during your encounter with Directcare or about your health condition; or if you breach the terms of this Agreement.
14. Contacting Us-Emergency. If you are experiencing severe pain, distress, or any medical emergency, please call 911 or go to the nearest hospital emergency room immediately without delay. Contact Directcare only after first seeking emergency care.
15. Contacting Us-Telephone. Your Service Provider may not immediately be available by telephone. We return messages as promptly as we can, but may be delayed outside of regular business hours, on weekends, and holidays. If your Service Provider is unavailable for an extended period, we will provide you with an alternative contact.
16. Contacting Us-Email. You may email Directcare at info@directcare.us regarding administrative matters, such as scheduling Health Services or making a payment of Fees. However, due to privacy and security regulations, your Professional Service Provider is unable to offer clinical services through email communication and will not email Clients regarding issues incident to Health Services.
17. Cooperation. You and Directcare agree to cooperate on all matters regarding this Agreement, including, without limitation, taking actions as the other Party may reasonably request, for the purpose of carrying out the intent of this Agreement.
18. Client Records. We will retain the original signed Agreement in your personal record and provide you with a copy of the signed Agreement at any time upon your request. We are required to keep an archive of your health records as a Client. Our archive is maintained under lock and key, for a minimum of seven (7) years from the date of your termination of this Agreement. You are entitled to receive a copy of your health record under most circumstances.
19. Confidentiality. Information regarding your healthcare, including payment for healthcare, is protected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d et seq., 45 C.F.R. Parts 160 & 164. Under this law, we may not disclose any protected information except as permitted by law. The law allows us to share information with your caregivers, to bill and collect, to communicate with financially responsible people including without limitation the Guarantor, and for our operations. Please see the Online Privacy Policy for more information. We will obtain your consent and written authorization prior to the release of information concerning you except in those circumstances when permitted or required by law to release information. Without limiting any of the foregoing, if payment is made by credit card, you further agree as follows: in the event of any credit card dispute as to any services rendered, our staff or representatives are authorized to submit to the applicable credit card company this Agreement or any other agreement or documents Directcare or its staff deems reasonably necessary to establish that services were rendered and that you agreed to be responsible for payment. We shall submit only minimally necessary portions of your identifying information/records and if further information is required to establish the provision of services, you agree to provide any necessary authorizations in an expeditious manner.
20. Grievances. If you feel that you are being mistreated or treated inappropriately and wish to complain, you may do so by submitting a written complaint to Directcare at the following address:
Directcare Services, LLC
9595 Wilshire Boulevard
Suite208
Beverly Hills, California 90212
hello@directcare.us
We will review your complaint and the findings and recommendations will be reported back to you within three (3) business days.
21. Notice to Consumers. You acknowledge that you understand that medical doctors are licensed and regulated by the Medical Board of California. More information is available at www.mbc.ca.gov.
22. Dispute Resolution. In the event that any disagreement, dispute or claim arises among the Parties with respect to the enforcement or interpretation of this Agreement or any specific terms and provisions hereof or with respect to whether an alleged breach or default hereof has or has not occurred (collectively, a “Dispute”), such Dispute shall be settled in accordance with the arbitration provisions of this Agreement. All other disputes that cannot be resolved by the Parties within sixty (60) days of a demand shall be resolved by final and binding arbitration before a single arbitrator who shall be a retired judge or attorney (the “Arbitration”), which shall be initiated and administered by and in accordance with the then current arbitration rules of the JAMS in Los Angeles, California, with the exact time and location decided by the arbitrator selected in accordance with the then current arbitration rules of JAMS. The arbitrator shall apply California substantive law or federal substantive law where state law is preempted. The arbitrator selected shall have the power to enforce the rights, remedies, duties, liabilities, and obligations of discovery by the imposition of the same terms, conditions, and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of California. The arbitrator(s) shall have the power to grant all legal and equitable remedies provided by California law and award compensatory damages provided by California law, except that punitive damages shall not be awarded. The arbitrator(s) shall prepare in writing and provide to the Parties an award including factual findings and the legal reasons on which the award is based. The arbitration award may be enforced through an action thereon brought in the Superior Court for the State of California in Los Angeles, California. The prevailing Party in any Arbitration hereunder shall be awarded reasonable attorneys’ fees, expert and non-expert witness costs and any other expenses incurred directly or indirectly with said Arbitration, including without limitation the fees and expenses of the arbitrator(s).
THIS ELECTION OF AN ALTERNATIVE DISPUTE PROCESS IS AN AFFIRMATIVE WAIVER OF THE PARTIES’ RIGHTS TO A JURY TRIAL UNDER CALIFORNIA LAW, Cal. C. Civ. Pro. Sec 631. BY SIGNING BELOW, EACH PARTY IS EXPLICITLY WAIVING JURY TRIAL AND AUTHORIZING ANY AND ALL PARTIES TO FILE THIS WAIVER WITH ANY COURT AS THE WAIVER REQUIRED UNDER Cal. C. Civ. Proc. Sec. 631(f)(2):
23. Miscellaneous.
23.1 Amendments. This Agreement shall not be modified or amended except by a written document executed by all Parties, and such written modifications shall be attached hereto.
23.2 Successors and Assigns. Client may not assign this Agreement or delegate any right or duty hereunder without the prior written consent of Directcare. Subject to the foregoing, this Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, estates, successors in interest, legatees, permitted transferees, and assigns.
23.3 Severability. If any provision in this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, you agree that the remainder of this Agreement shall remain in full force and shall not be affected by the invalid or unenforceable provision. No provision in this Agreement shall be deemed dependent on any other provision unless expressly stated in this Agreement.
23.4 Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and communicated via either electronic mail, first class mail (postage prepaid, registered or certified), overnight courier or hand delivery at the addresses set forth above or to any other address that a Party may designate by written notice to the other Parties. Notice shall be effective: (a) in the case of hand-delivery, when delivered; (b) in the case of first class mail, four (4) days after mailing; and (c) in the case of electronic mail or overnight courier when actually received.
23.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of law or choice of law provisions or decisions.
23.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each counterpart may be delivered by facsimile or e-mail transmission (as a .pdf, .tif or similar uneditable attachment), which transmission shall be deemed delivery of an originally executed counterpart hereof.
23.7 Integration. This Agreement, and all attachments, exhibits, and other agreements referenced herein or contemplated hereby constitute the entire agreement between and among the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties, and there are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof, except as specifically set forth herein.
23.8 Waiver. No waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a waiver of any other provision hereof, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
23.9 Force Majeure: Directcare shall not be liable for any injury, damage, claim, loss, or failure in performance under this Agreement resulting, directly or indirectly, from activities beyond Directcare’s control, including without limitation acts of God, accidents, fires, explosions, earthquakes, floods, failure of transportation, equipment, or supplies, vandalism, strikes, infectious diseases, or other similar causes beyond control.
In addition, by booking an appointment, you agree to our Terms of Use, Privacy Policy, Consent to Telehealth, Notice of Privacy Practices, and COVID-19 at Home Test Authorization and Consent
