Vapotherm Access Terms & Conditions
Last Revised: June 16, 2021
I. ABOUT THE PLATFORM
COMPANY IS NOT A HEALTHCARE PROVIDER, AND COMPANY DOES NOT PROVIDE PROFESSIONAL MEDICAL SERVICES, MENTAL HEALTH CARE OR OTHER PROFESSIONAL SERVICES. ANY MEDICAL CONTENT, SERVICES, INFORMATION, ADVICE OR MATERIALS OF ANY KIND ACCESSED THROUGH THE PLATFORM IS FOR GENERAL INFORMATION OR REFERENCE PURPOSES ONLY AND SHALL NOT BE RELIED UPON OR REPLACE ANY PROFESSIONAL, CLINICAL OR MEDICAL ADVICE OR JUDGEMENT PROVIDED BY A HEALTHCARE PROFESSIONAL, OR ANY ADVICE OR JUDGMENT PROVIDED BY A LEGAL PROFESSIONAL. AS A PLATFORM PROVIDER, COMPANY IS NOT RESPONSIBLE FOR, AND IS UNDER NO OBLIGATION TO BECOME INVOLVED IN, ANY DISPUTES BETWEEN (A) ANY USERS OF THE PLATFORM, AND (B) BETWEEN THE USERS OF THE PLATFORM AND ANY THIRD PARTY OTHER THAN COMPANY ARISING IN CONNECTION WITH THE USE OF THE PLATFORM.
DO NOT USE THE PLATFORM FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE IN CRISIS OR EXPERIENCING A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL OR 911. YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK.
WHILE THE PLATFORM ENABLES END USERS AND PROVIDERS TO COMMUNICATE WITH ONE ANOTHER, WE ARE NOT RESPONSIBLE FOR MONITORING SUCH INFORMATION AND COMMUNICATIONS, BUT RESERVE THE RIGHT TO DO SO, AND WE ARE NOT A PARTY TO TRANSACTIONS THAT MAY OCCUR BETWEEN END USERS AND PROVIDERS EXCEPT AS PROVIDED IN THIS TOS. BY USING THE SERVICE, YOU KNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR, AND WE EXPRESSLY DISCLAIM, ALL LIABILITY THAT MAY RESULT FROM INFORMATION MADE AVAILABLE BY END USERS OR PROVIDERS AND THE CONDUCT OF END USERS AND PROVIDERS, WHETHER ONLINE OR OFFLINE. THE COMPANY DOES NOT SPONSOR, ENDORSE OR RECOMMEND ANY PROVIDER, NOR DO WE MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, TIMING OR LEGALITY OF THE PRODUCTS OR SERVICES THEY PROVIDE. ADDITIONALLY, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT ANY PROVIDER IS LICENSED, QUALIFIED, INSURED OR CAPABLE OF PERFORMING ANY PRODUCT OR SERVICE, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY OR ACCURACY OF ANY OF THE PRODUCTS, SERVICES OR CONTENT. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH PRODUCTS, SERVICES OR CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL LISTED OR ACCESSIBLE THROUGH THE PLATFORM.
- Qualifications. You represent, warrant and covenant that, at the time of registration and on an ongoing basis, you (A) satisfy all professional licensing requirements applicable to the professional services you are providing through the Platform, (B) hold all valid and current licenses required to provide such services, (C) are in good standing with each licensure board or other authority issuing such licenses or otherwise having regulatory authority over you, (D) have not received any notice of cancellation, probation, suspension, revocation or non-renewal of any licenses required to provide such services and (E) will not provide any healthcare services to any End User residing in a state in which you are not licensed. If and for so long as you fail to satisfy the provisions of this paragraph, you will cease all use of the Platform. You will, at our request, cooperate with us in confirming your professional credentials and compliance with the foregoing representations and warranties. You agree to comply with, and to work directly with End Users to comply with, the licensing requirements and professional standards applicable to you and applicable state and federal laws, including but not limited to, telehealth laws and laws governing the services you provide to End Users in the state in which you reside.
- Responsibilities. When you choose to engage with an End User, we are not responsible for monitoring such information and communications, and we are not a party to any of the transactions that may occur between you and the End User except as provided in Section II below or to any agreements that may be entered into between you and the End User. You shall be solely responsible for the services you provide, for any documents you may require from the End User and for any and all injuries, illnesses, damages, costs, expenses, liabilities, or otherwise suffered or incurred by you in connection with the fulfillment of or failure to perform such services. You agree that you are under no obligation to engage with any End User. Any decision to engage with an End User shall be made by you in your sole and absolute discretion. You are responsible for setting, billing and collecting fees, if any, from any End Users.
- Disclaimer of Warranties. You understand and agree that your engagement with an End User is at your sole risk and that the Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through or the performance of, the Platform including, but not limited to, (A) information and identities of End Users, (B) results of the services that you provide to End Users and other uses of the Platform or (C) the suitability of the End Users that you may engage with for the services you provide.
- Providers may or may not have been previously screened or approved by the Company. When you choose to engage with a Provider, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between you and the Provider except as otherwise provided in Section II below. Providers are solely responsible for the services they provide and for any and all injuries, illnesses, damages, costs, expenses, liabilities, or otherwise suffered or incurred by you in connection with their performance of or failure to perform their services. The parties agree that you are under no obligation to engage with a Provider. Any decisions to engage with a Provider shall be made by you in your sole and absolute discretion.
- The Company does not endorse and is not responsible or liable for any content or services available from, or through, a Provider. You agree that should you use or rely on such content or services, available from or through a Provider, the Company is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with or engagement with a Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Provider exclusively and do not involve the Company except as provided herein. You should make whatever investigation or consult other resources that you deem necessary or appropriate before engaging with Providers.
- You understand and agree that your engagement of a Provider is at your sole risk and that the Company makes no warranty as to the accuracy, completeness, quality or reliability of any materials, information or data available through the Platform including, but not limited to, (A) information about Providers, identities of Providers, recommendations, connections and references and (B) the suitability or results of the services provided by Providers and other uses of the Platform.
- You agree that the Company is not responsible for the accessibility or unavailability of a Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against the Company relating to any interactions or dealings with Providers, and release the Company from any and all liability arising from or relating to any interactions or dealings with Providers.
- what information we may collect about you;
- what we use that information for;
- what third-party information, if any, you are agreeing to share by using the Platform; and
- with whom we share that information.
1. To register an account on the Platform, you must be at least 18 years of age (or the age of legal majority in your jurisdiction). [i]
You do not need to create an account (a “User Account”) to visit the public pages of the Platform, however, you do need a Vapotherm Access platform User Account to access the App. You are responsible for providing and maintaining up-to-date and accurate contact information, including your telephone number and email address, and other account information on our Platform. Telephone calls, SMS messages and email correspondence with Company may be recorded or monitored.
2. You are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any password, account number and other log-in information provided by you or Company for accessing the Platform. You are solely and fully responsible for all activities that occur under your password or account, via telephone (through telephone calls or SMS messages), and via email. Company does not have any control over the use of your or any User’s account, and Company expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your (or another User’s) password or account or you suspect any other breach of security, you will cease all use of such password or account and contact Company immediately by emailing email@example.com.
3. If (i) your User information changes or (ii) you wish to update your preferences with respect to SMS messaging or other communications from us, you may correct, delete inaccuracies, or amend your User information and preferences by making the change on our user information page or by emailing us at firstname.lastname@example.org. We will make commercially reasonable efforts to respond to your access request within thirty (30) days.
III. USING THE PLATFORM
1. Data Uploaded to the App. Each User is responsible for the accuracy and completeness of any information that such User and its agents or representatives (as applicable) enter on, submit to or upload to the Platform (including but not limited to, User contact information, such as a current telephone number and email address). Company may not be able to verify the accuracy of such information, and may rely on such input information without further corroboration or inquiry. Each User further understands that any changes to such User’s telephone number or email address may affect services received under the Platform, that the User is responsible for notifying us of such changes in a timely manner in accordance with Section II.3. and that the User is solely responsible for any changes in the Platform provided to the User following a change in telephone number or email address by the User about which we are not notified in accordance with Section II.3.
Company makes no representations or warranties regarding, nor is responsible for, the efficacy, safety, sensitivity, specificity, or validation of the services provided by any health care provider utilizing the Platform or other third parties, including the accuracy of any external data uploaded to or modified on the Platform by any healthcare provider or other external data providers.
IV. TERMS APPLICABLE TO THE PLATFORM
2. Use Restrictions.
- You agree to protect the Platform, and its proprietary content, and any associated information and other materials, from any unauthorized access or use, and you agree that you will not use the Platform or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Company. Except as specifically permitted herein or expressly authorized in writing by Company, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit any of the Platform in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use any of the Platform in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the Platform, any updates, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from any of the Platform, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).
3. Third Party Services and Materials.
- As part of the Platform, we will be displaying, including or making available content, data, information, applications or materials from third parties (collectively, “Third Party Materials”) or provide links to certain third-party websites. By using the Platform, you acknowledge and agree that Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. Company does not guarantee the availability or display of Third Party Materials and reserves the right to remove any Third Party Materials at any time in our sole discretion. Any opinions, advice, statements, views, positions, services, offers, or other Third Party Materials expressed or made available on the Platform are solely those of the respective authors or distributors, and do not necessarily reflect our opinions, views, or positions or those of our licensors. You use or rely on Third Party Materials at your own risk.
- In addition, the Platform, as well as any third-party services and Third Party Materials that may be accessed from, displayed on or linked to from the Platform are not available in all languages or in all countries. Company makes no representation that any third-party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, rules and regulations, including but not limited to applicable local laws.
4. Support Services. If you have a question regarding your use of the Platform or would otherwise like to speak to a member of our support services team, you may email email@example.com.
V. Disclaimer of Warranties & Limitation of Liability, RELEASE & INDEMNITY
1. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM (INCLUDING, WITHOUT LIMITATION, THE APP, ANY THIRD PARTY MATERIALS, AND THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE FOREGOING (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY SERVICES PROVIDED BY ANY HEALTHCARE PROVIDERS, AND ANY FAULT OR FAILURE IN THE PERFORMANCE OF SUCH COLLECTIONS SHALL BE THE SOLE RESPONSIBILITY OF ANY HEALTHCARE PROVIDERS. COMPANY DOES NOT WARRANT THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE PLATFORM WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE PLATFORM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE OR AGENTS SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
VII. ARBITRATION AND CLASS ACTION WAIVER
THIS SECTION INCLUDES AN ARBITRATION AGREEMENT AND AN AGREEMENT THAT ALL CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING). PLEASE READ IT CAREFULLY. YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE OPT OUT PROCEDURE DESCRIBED BELOW.
1. Informal Process First. You agree that in the event of any dispute between you and Company, you will first contact Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including, without limitation, any court action.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to HGE Health Care Solutions, LLC, 1301 Virginia Drive, Suite 100, Fort Washington, PA 19034, Attn: Customer Care. The arbitration will be administered by the American Arbitration Association (“AAA”) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Platform on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. New York law, without regard to conflicts of law principles, will apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Platform on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
If you do not want to arbitrate disputes with Company and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Platform.
Class Action Waiver
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. 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 for any reason a claim proceeds in court rather than in arbitration, you and Company each waive any right to a jury trial.
VIII. GENERAL PROVISIONS
3. Export Laws. You agree that you will not export or re-export, directly or indirectly the Platform and/or other information or materials provided by Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export of such software or data without first obtaining such license, approval or other applicable license exemption or exception. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Platform, you represent and warrant that you are not located in any such country or included on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
5. Electronic Communications Notice. When you use the Platform or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically. We may communicate with you by email or posting notices on the Platform. You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, you must have a computer or other Internet-enabled device. In order to retain copies of any such communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. If you wish to withdraw your consent for us to communicate with you electronically, you may not use our Platform.
6. Mobile. To the extent you access our Platform through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain elements of the Platform may be prohibited or restricted by your carrier, and not all aspects of the Platform may work with all carriers or devices. By using the Platform, you agree that we may communicate with you regarding the Platform by electronic means and that certain information about your usage of the Platform may be communicated to us.
Under California Civil Code Section 1789.3, California users of the Platform receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
HGE Health Care Solutions, LLC
1301 Virginia Drive, Suite 100
Fort Washington, PA 19034
Attn: Customer Care