SESAME, INC., D/B/A SESAME TERMS OF SERVICE
Effective Date: August 1, 2023
Welcome to Sesame!
Sesame, Inc. d/b/a Sesame or SesameCare (“Sesame,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.sesamecare.com (the “Website”) and through its mobile applications (the “App”) and related services, content, tools, widgets, software, API(s), and/or other product(s), service(s), data, or information supplied to you by Sesame (collectively, including any new features and applications, and the Website and the App, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST SESAME ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (C) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. BY USING THE WEBSITE AND/OR THE APP, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF SERVICE, PLEASE DO NOT USE THESE SERVICES.
In addition, when using certain services, you are subject to any additional terms and conditions applicable to such services applicable to you as a user of the Services, including, without limitation, the Business Associate Agreement attached as Exhibit A to the extent you are a provider that has confirmed its HIPAA Covered Entity status to Sesame or a Business Associate to such a Covered Entity, and the Privacy Policy located at https://sesamecare.com/privacy, both of which are agreed to and incorporated herein by reference. You must read, agree with and accept all of the terms and conditions contained in these Terms of Service and the Privacy Policy, which includes those terms and conditions expressly set forth herein and those incorporated by reference before using the Website and the App.
Effective Date: August 1, 2023
Welcome to Sesame!
Sesame, Inc. d/b/a Sesame or SesameCare (“Sesame,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.sesamecare.com (the “Website”) and through its mobile applications (the “App”) and related services, content, tools, widgets, software, API(s), and/or other product(s), service(s), data, or information supplied to you by Sesame (collectively, including any new features and applications, and the Website and the App, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST SESAME ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (C) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. BY USING THE WEBSITE AND/OR THE APP, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF SERVICE, PLEASE DO NOT USE THESE SERVICES.
In addition, when using certain services, you are subject to any additional terms and conditions applicable to such services applicable to you as a user of the Services, including, without limitation, the Business Associate Agreement attached as Exhibit A to the extent you are a provider that has confirmed its HIPAA Covered Entity status to Sesame or a Business Associate to such a Covered Entity, and the Privacy Policy located at https://sesamecare.com/privacy, both of which are agreed to and incorporated herein by reference. You must read, agree with and accept all of the terms and conditions contained in these Terms of Service and the Privacy Policy, which includes those terms and conditions expressly set forth herein and those incorporated by reference before using the Website and the App.
Access and Use of the Service
Services Description: Sesame provides a platform that facilitates the marketing and sale of healthcare services by healthcare providers to patients searching for healthcare services and the scheduling and payment of healthcare services by Patients. You control the price you are offering each healthcare service, (the “Provider Price”) through a provider dashboard. Sesame, at our discretion as described in Fees below, may add a transaction or other fee to the Provider Price resulting in the price we list your service for on the site (the “Listed Price”).
Your Registration Obligations: You may be required to register with Sesame in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 18 years of age, you are not authorized to use the Service, with or without registering.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account, whether conducted by you, your organization, employees, or authorized agents. Sesame is entitled to act on instructions received under your password. You agree to (a) immediately notify Sesame of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Sesame is not responsible for any actions taken or transactions made to or from your accounts by any other party using your password, and Sesame will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to the Service: Sesame reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice, to the extent permitted by applicable law. You agree that Sesame will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage of Your Information: You acknowledge that Sesame may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Sesame’s servers on your behalf. You agree that Sesame shall not be liable for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Sesame reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Sesame reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to upload content to the Service via a mobile device, (b) the ability to browse the Service and the Website and the App from a mobile device and (c) the ability to access certain features on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service 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 Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Sesame and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. Notwithstanding the foregoing, you agree not to use SMS, MMS or text messaging to share any health data with Sesame or an individual and release Sesame from any and all responsibility for sending any such health data via unsecured SMS, MMS or text message. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Sesame account information to ensure that your messages are not sent to the person that acquires your old number.
Electronic Communications
When you use the Service or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. By using the Service, you acknowledge and agree that Sesame may send e-mails relating to your account. You can opt out of your subscription to Sesame’s e-mail services at any time by logging in to the Service and changing your notification preferences. You can also unsubscribe to special promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications under opt-in preferences. You may choose not to receive emails by unsubscribing.
You agree to use the Services, including as relates to the disclosure and transmission of PHI, in compliance with applicable law. You further agree to implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services, including any health data uploaded by individual users. Such safeguards shall comply with federal, state, and local requirements, for the protection of personal data, including health data subject to the HIPAA Privacy Rule and the Security Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your Workforce or Services Users to transmit, store and process electronic health information through the use of the Services.
You acknowledge and agree that you are solely responsible for providing Sesame with accurate contact information, including your mobile device number and email address, where we may send communications. Sesame is not responsible for user errors and omissions.
Conditions of Use
User Conduct: You agree to use the Services only as directed and approved by Sesame. Sesame reserves the right to investigate and take appropriate legal action against anyone who, in Sesame’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Sesame, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Sesame or its users to any harm or liability of any type;
b) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h) do anything that Sesame determines, in its sole discretion, is improper;
i) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
Fees:
• The Company’s standard onboarding charge of $950 per practice is currently waived.
• When a service is booked via the Sesame platform, you will receive 100% of the Provider Price, minus the cost of credit card processing and electronic funds transfer (currently 3.49% maximum), for a current total of at least 96.51% of the Provider Price.
• The Listed Price may include a flat fee determined by Sesame for any given service.
• Sesame has the right to change its Fee rate and structure, including moving to a monthly booking fee, at any time.
Sesame does not accept Medicare, Medicaid, or any other third-party insurance. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Sesame with information regarding your credit card or other payment instrument. You represent and warrant to Sesame that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
You agree to pay Sesame the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize Sesame to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Sesame know within sixty (60) days after the date that Sesame charges you. We reserve the right to change Sesame’s prices for the Services, unless otherwise explicitly agreed to by Sesame in writing. If Sesame does change prices, Sesame will provide notice of the change on the Service or in email to you, at Sesame’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Sesame’s net income. If you dispute any charges you must let Sesame know within sixty (60) days after the date of such charges. Unless otherwise specified, all Services purchased on the Site are non-refundable and non-transferable.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
US Use Only; Governing Law: This Service is hosted in the United States and is intended only for users located in the United States. Sesame makes no representation that the information and services provided on the Service are applicable to, appropriate for, or available for use outside the United States. If you access our Service from outside the United States, you will be responsible for compliance with all local laws. You agree to comply with all laws and regulations applicable to your use of our Services.
Note also that information submitted by you to us may be transmitted to and shared with third parties located in other countries, in order to provide Services to you.
Commercial Use: The Service is for your internal business purposes only. Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Third Party Distribution Channels
Sesame offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
• Sesame and you acknowledge that these Terms of Service are concluded between Sesame and you only, and not with Apple Inc. (“Apple”), and that as between Sesame and Apple, Sesame, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Sesame’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Sesame and you acknowledge that Sesame, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Sesame and Apple, Sesame, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Sesame as follows:
contact@sesamecare.com
Sesame, Inc., d/b/a Sesame
200 Broadway 3rd Floor
New York, NY 10038
Sesame and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Sesame, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Sesame from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Sesame, our affiliates and our partners or licensors, as applicable (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Sesame.
The Sesame name and logos are trademarks and service marks of Sesame (collectively the “Sesame Trademarks”). Other Sesame, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Sesame. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Sesame Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Sesame Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Sesame be liable in any way for any content, materials or services of, or provided by or on behalf of, any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Sesame does not pre-screen content, but that Sesame and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Sesame and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Sesame, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. The Services help users find and source certain third party services provided by or on behalf of independent providers like you not related to Sesame. Sesame does not guarantee or warrant, and makes no representations regarding, any users, their actions, inactions, content or transactions, nor the reliability, quality or suitability of your services for users. By using the Service, you agree to hold the Company free from the responsibility for any liability or damage that might arise out of the transactions involved. As a third party service provider, by posting or listing your third party services in our directory, or letting us do the same, you give us license to use your listing, including any content, information, and any names, marks or logos therein, in our directory an in promotion of our directory and Services. NEITHER SESAME NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY THIRD PARTY PROVIDER NOR ANY USER OF THE SERVICES. ANY INDIVIDUALS WHO PROVIDE ANY THIRD PARTY SERVICES ARE NOT EMPLOYEES NOR CONTRACTORS OF SESAME, AND SESAME IS NOT RESPONSIBLE FOR THEIR ACTIONS OR INACTIONS NOR FOR ANY SERVICES THEY PROVIDE (OR FAIL TO PROVIDE).
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, or if you are a Practice User, have obtained all rights and necessary authorizations to do so. By voluntarily providing us with User Content, which may include Personal Information (as defined in the Privacy Policy), you are consenting to our use of Personal Information in accordance with these Terms of Service and our Privacy Policy. You also agree that any User Content you submit through the Service that is communicated to our partners, affiliates, and medical providers will be accurate and complete. By uploading any User Content you hereby grant and will grant Sesame and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, the improvement of the Service, and as aggregated and/or de-identified for any lawful purpose, in any form, medium or technology now known or later developed, subject to the Privacy Policy.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Sesame are non-confidential and Sesame will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Sesame may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Sesame, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Sesame does not provide any medical advice or services, and should not be relied upon as a substitute for consultations with qualified professionals who are familiar with a patient’s individual needs. You represent, warrant and covenant that you, and any individuals who perform any Third Party Services on your behalf, are (and will at all applicable times be) fully licensed, qualified, trained and experienced to perform, and are fully responsible for, all Third Party Services provided. You and your agents will at all times comply with all applicable laws, rules, regulations, and industry standards, and shall be solely responsible, to the extent applicable, for obtaining any and all consents, authorizations, or permissions that may be required by the HIPAA Privacy Rule or other applicable federal or state laws and regulations before providing healthcare services to the individual, or disclosing any Protected Health Information pertaining to an Individual.
You shall be responsible for clearly and conspicuously disclosing to your patients and end users (“end users”) (i) that you (and not we) are solely responsible for all content and any Third Party Services you provide, (ii) that we shall have no liability whatsoever to end users, and (iii) that we are not responsible for any disputes between you and your end users (e.g., resulting from the Third Party Services you provide or are supposed to provide). You shall not state or imply otherwise.
Protected Health Information: The terms of the Business Associate Agreement attached as Exhibit A are incorporated into this Agreement to the extent you are a provider that has confirmed its HIPAA Covered Entity status to Sesame or a Business Associate to such a Covered Entity.
Our Obligations to provide and process the Services to you, Sesame shares your personally identifiable information with our authorized service providers that perform certain services or functions on our behalf, including health care providers. Sesame may be required by law to disclose information you have provided in using any of the services on the Website and/or the App. Sesame may also disclose information where someone poses a threat to Sesame’s interests (such as user fraud) or whose activities could bring harm to others. In addition, it may be necessary in the reasonable opinion of officials of Sesame that certain information be provided to third parties, such as law enforcement authorities or governing bodies for a particular health care provider. In the event that Sesame receives a court order to disclose information on the Website and/or the App about you or your activities on the Website and/or the App, you agree that such information may be disclosed. You may request that we update or change the information you provided to us or to receive a copy of the information we have stored by emailing us at contact@sesamecare.com or by updating the information in your Member profile. We will make every reasonable effort to honor your wishes, or provide you with an explanation of why we cannot make the changes requested. We may request proof of identity before updating any information.
Confidentiality: You acknowledge and agree that Sesame has contributed significant time and resources to the formation, development, maintenance, use and marketing of the Sesame telemedicine marketplace platform (the "Platform"). You further acknowledge that, through your use of the Service(s), you may become privy to or aware of proprietary or confidential information of Sesame, including, but not limited to, information relating to the identity of patients utilizing the Platform, the Platform, and its formation, development, maintenance, use, and marketing (collectively, "confidential information"). In recognition of Sesame's contributions and of being provided with Sesame's confidential information, you agree: (a) except as required by law, to maintain the confidential information in the strictest confidence; and (b) to not, without the prior written consent of Sesame, directly or indirectly, use, disclose, or make available to any other person or entity any confidential information made known to you through the use of the Service(s) and/or the Platform.
Third Party Websites and Services
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Sesame has no control over such sites and resources and Sesame is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Sesame will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Sesame is not liable for any loss or claim that you may have against any such third party.
We may make payments to you through Stripe Connect. Your acceptance of payments is provided subject to the Stripe Connected Account Agreement.
Indemnity and Release
You agree to release, indemnify, defend and hold Sesame and its affiliates and its and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, liabilities, fines, fees, penalties, damages, costs, expenses, including reasonable attorneys’ fees, arising out of or related to any allegations, rights, claims, actions of any kind arising out of or related to: (i) injury (including death) or damage to property caused by your or your agents’ action or inaction; (ii) your use of the Service, (iii) any content or materials provided by you or your agents, (iv) your connection to the Service, (v) any Third-Party Services you provide, (vi) your violation of these Terms of Service, or (vii) your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred to the extent as a result of any breach of these terms by such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. IN NO EVENT WILL YOU HAVE ANY OBLIGATION TO INDEMNIFY ANY INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE TO THE EXTENT ARISING FROM ANY GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL MISCONDUCT COMMITTED BY ANY INDEMNITEE. ANY OBLIGATION TO INDEMNIFY AN INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE ARISING FROM ANY NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL CONDUCT COMMITTED BY ANY INDEMNITEE MAY NOT BE ENFORCEABLE AGAINST ANY VISITOR OF THE SERVICES TO THE EXTENT REQUIRED BY APPLICABLE LAW, SUCH AS FROM CERTAIN JURISDICTIONS (SUCH AS NEW JERSEY).
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SESAME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
SESAME MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SESAME WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SESAME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL SESAME’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SESAME IN THE LAST TWELVE (12) MONTHS.
EXCEPT FOR YOUR OBLIGATIONS TO INDEMNIFY, DEFEND AND HOLD HARMLESS, YOUR OBLIGATIONS WITH RESPECT TO PRIVACY, CONFIDENTIALITY AND/OR DATA SECURITY (INCLUDING WITHOUT LIMITATION UNDER ANY BAA), YOUR BREACH OF APPLICABLE LAWS, AND/OR YOUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL YOUR TOTAL LIABILITY TO SESAME FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID (OR SHOULD HAVE PAID) SESAME IN THE LAST TWELVE (12) MONTHS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION AND RELEASE”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to ArbitrateThis Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” Except as expressly agreed to in writing by Sesame, you agree that any and all disputes or claims that have arisen or may arise between you and Sesame, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Except as expressly agreed to in writing by Sesame, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Sesame are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator as set forth below, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized ReliefYOU AND SESAME AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SESAME 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute ResolutionSesame is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at contact@sesamecare.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Sesame should be sent to Sesame, 427 Broadway, New York, NY 10013 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Sesame and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Sesame may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Sesame or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Sesame is entitled.
d. Arbitration ProceduresArbitration will be conducted by a neutral arbitrator administered by JAMS in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this Section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about the JAMS Rules and fees for disputes can be found at JAMS’ relevant page, https://www.jamsadr.com/rules-download/. If there is any inconsistency between any term of the JAMS Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Sesame and you agree otherwise, the seat of arbitration shall be New York, New York. If your claim is for $10,000 or less, Sesame agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of ArbitrationPayment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Sesame will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Sesame will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Sesame will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the JAMS Rules.
f. ConfidentialityAll aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. SeverabilityIf a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration AgreementNotwithstanding any provision in this Terms of Service to the contrary, Sesame agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Sesame written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Termination
You agree that Sesame, in its sole discretion, to the extent permitted under applicable law, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Sesame believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Sesame may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Sesame may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service, to the extent permitted under applicable law. Further, you agree that Sesame will not be liable to you or any third party for any termination of your access to the Service.
General
Except as otherwise agreed to in writing by Sesame, these Terms of Service, in conjunction with the Privacy Policy, constitute the entire agreement between you and Sesame and govern your use of the Service, superseding any prior agreements between you and Sesame with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service any separate agreements whereby we provide you Services will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, (a) for actions brought by you, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York; and (b) for actions brought by Sesame, Sesame may bring such actions in the state or federal courts where you are located. The failure of Sesame to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Sesame, but Sesame may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
We will not be deemed to be in breach of these Terms of Use or liable for any breach of these Terms of Use or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, disease, epidemic, pandemic, earthquakes or floods, civil disorder, strikes, fire or other disaster.
Access and Use of the Service
Services Description: Sesame provides a platform that facilitates the marketing and sale of healthcare services by healthcare providers to patients searching for healthcare services and the scheduling and payment of healthcare services by Patients. You control the price you are offering each healthcare service, (the “Provider Price”) through a provider dashboard. Sesame, at our discretion as described in Fees below, may add a transaction or other fee to the Provider Price resulting in the price we list your service for on the site (the “Listed Price”).
Your Registration Obligations: You may be required to register with Sesame in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 18 years of age, you are not authorized to use the Service, with or without registering.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account, whether conducted by you, your organization, employees, or authorized agents. Sesame is entitled to act on instructions received under your password. You agree to (a) immediately notify Sesame of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Sesame is not responsible for any actions taken or transactions made to or from your accounts by any other party using your password, and Sesame will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to the Service: Sesame reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice, to the extent permitted by applicable law. You agree that Sesame will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage of Your Information: You acknowledge that Sesame may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Sesame’s servers on your behalf. You agree that Sesame shall not be liable for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Sesame reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Sesame reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to upload content to the Service via a mobile device, (b) the ability to browse the Service and the Website and the App from a mobile device and (c) the ability to access certain features on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service 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 Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Sesame and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. Notwithstanding the foregoing, you agree not to use SMS, MMS or text messaging to share any health data with Sesame or an individual and release Sesame from any and all responsibility for sending any such health data via unsecured SMS, MMS or text message. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Sesame account information to ensure that your messages are not sent to the person that acquires your old number.
Electronic Communications
When you use the Service or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. By using the Service, you acknowledge and agree that Sesame may send e-mails relating to your account. You can opt out of your subscription to Sesame’s e-mail services at any time by logging in to the Service and changing your notification preferences. You can also unsubscribe to special promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications under opt-in preferences. You may choose not to receive emails by unsubscribing.
You agree to use the Services, including as relates to the disclosure and transmission of PHI, in compliance with applicable law. You further agree to implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services, including any health data uploaded by individual users. Such safeguards shall comply with federal, state, and local requirements, for the protection of personal data, including health data subject to the HIPAA Privacy Rule and the Security Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your Workforce or Services Users to transmit, store and process electronic health information through the use of the Services.
You acknowledge and agree that you are solely responsible for providing Sesame with accurate contact information, including your mobile device number and email address, where we may send communications. Sesame is not responsible for user errors and omissions.
Conditions of Use
User Conduct: You agree to use the Services only as directed and approved by Sesame. Sesame reserves the right to investigate and take appropriate legal action against anyone who, in Sesame’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Sesame, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Sesame or its users to any harm or liability of any type;
b) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h) do anything that Sesame determines, in its sole discretion, is improper;
i) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
Fees:
• The Company’s standard onboarding charge of $950 per practice is currently waived.
• When a service is booked via the Sesame platform, you will receive 100% of the Provider Price, minus the cost of credit card processing and electronic funds transfer (currently 3.49% maximum), for a current total of at least 96.51% of the Provider Price.
• The Listed Price may include a flat fee determined by Sesame for any given service.
• Sesame has the right to change its Fee rate and structure, including moving to a monthly booking fee, at any time.
Sesame does not accept Medicare, Medicaid, or any other third-party insurance. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Sesame with information regarding your credit card or other payment instrument. You represent and warrant to Sesame that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
You agree to pay Sesame the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize Sesame to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Sesame know within sixty (60) days after the date that Sesame charges you. We reserve the right to change Sesame’s prices for the Services, unless otherwise explicitly agreed to by Sesame in writing. If Sesame does change prices, Sesame will provide notice of the change on the Service or in email to you, at Sesame’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Sesame’s net income. If you dispute any charges you must let Sesame know within sixty (60) days after the date of such charges. Unless otherwise specified, all Services purchased on the Site are non-refundable and non-transferable.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
US Use Only; Governing Law: This Service is hosted in the United States and is intended only for users located in the United States. Sesame makes no representation that the information and services provided on the Service are applicable to, appropriate for, or available for use outside the United States. If you access our Service from outside the United States, you will be responsible for compliance with all local laws. You agree to comply with all laws and regulations applicable to your use of our Services.
Note also that information submitted by you to us may be transmitted to and shared with third parties located in other countries, in order to provide Services to you.
Commercial Use: The Service is for your internal business purposes only. Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Third Party Distribution Channels
Sesame offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
• Sesame and you acknowledge that these Terms of Service are concluded between Sesame and you only, and not with Apple Inc. (“Apple”), and that as between Sesame and Apple, Sesame, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Sesame’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Sesame and you acknowledge that Sesame, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Sesame and Apple, Sesame, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Sesame as follows:
contact@sesamecare.com
Sesame, Inc., d/b/a Sesame
200 Broadway 3rd Floor
New York, NY 10038
Sesame and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Sesame, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Sesame from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Sesame, our affiliates and our partners or licensors, as applicable (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Sesame.
The Sesame name and logos are trademarks and service marks of Sesame (collectively the “Sesame Trademarks”). Other Sesame, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Sesame. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Sesame Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Sesame Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Sesame be liable in any way for any content, materials or services of, or provided by or on behalf of, any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Sesame does not pre-screen content, but that Sesame and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Sesame and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Sesame, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. The Services help users find and source certain third party services provided by or on behalf of independent providers like you not related to Sesame. Sesame does not guarantee or warrant, and makes no representations regarding, any users, their actions, inactions, content or transactions, nor the reliability, quality or suitability of your services for users. By using the Service, you agree to hold the Company free from the responsibility for any liability or damage that might arise out of the transactions involved. As a third party service provider, by posting or listing your third party services in our directory, or letting us do the same, you give us license to use your listing, including any content, information, and any names, marks or logos therein, in our directory an in promotion of our directory and Services. NEITHER SESAME NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY THIRD PARTY PROVIDER NOR ANY USER OF THE SERVICES. ANY INDIVIDUALS WHO PROVIDE ANY THIRD PARTY SERVICES ARE NOT EMPLOYEES NOR CONTRACTORS OF SESAME, AND SESAME IS NOT RESPONSIBLE FOR THEIR ACTIONS OR INACTIONS NOR FOR ANY SERVICES THEY PROVIDE (OR FAIL TO PROVIDE).
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, or if you are a Practice User, have obtained all rights and necessary authorizations to do so. By voluntarily providing us with User Content, which may include Personal Information (as defined in the Privacy Policy), you are consenting to our use of Personal Information in accordance with these Terms of Service and our Privacy Policy. You also agree that any User Content you submit through the Service that is communicated to our partners, affiliates, and medical providers will be accurate and complete. By uploading any User Content you hereby grant and will grant Sesame and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, the improvement of the Service, and as aggregated and/or de-identified for any lawful purpose, in any form, medium or technology now known or later developed, subject to the Privacy Policy.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Sesame are non-confidential and Sesame will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Sesame may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Sesame, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Sesame does not provide any medical advice or services, and should not be relied upon as a substitute for consultations with qualified professionals who are familiar with a patient’s individual needs. You represent, warrant and covenant that you, and any individuals who perform any Third Party Services on your behalf, are (and will at all applicable times be) fully licensed, qualified, trained and experienced to perform, and are fully responsible for, all Third Party Services provided. You and your agents will at all times comply with all applicable laws, rules, regulations, and industry standards, and shall be solely responsible, to the extent applicable, for obtaining any and all consents, authorizations, or permissions that may be required by the HIPAA Privacy Rule or other applicable federal or state laws and regulations before providing healthcare services to the individual, or disclosing any Protected Health Information pertaining to an Individual.
You shall be responsible for clearly and conspicuously disclosing to your patients and end users (“end users”) (i) that you (and not we) are solely responsible for all content and any Third Party Services you provide, (ii) that we shall have no liability whatsoever to end users, and (iii) that we are not responsible for any disputes between you and your end users (e.g., resulting from the Third Party Services you provide or are supposed to provide). You shall not state or imply otherwise.
Protected Health Information: The terms of the Business Associate Agreement attached as Exhibit A are incorporated into this Agreement to the extent you are a provider that has confirmed its HIPAA Covered Entity status to Sesame or a Business Associate to such a Covered Entity.
Our Obligations to provide and process the Services to you, Sesame shares your personally identifiable information with our authorized service providers that perform certain services or functions on our behalf, including health care providers. Sesame may be required by law to disclose information you have provided in using any of the services on the Website and/or the App. Sesame may also disclose information where someone poses a threat to Sesame’s interests (such as user fraud) or whose activities could bring harm to others. In addition, it may be necessary in the reasonable opinion of officials of Sesame that certain information be provided to third parties, such as law enforcement authorities or governing bodies for a particular health care provider. In the event that Sesame receives a court order to disclose information on the Website and/or the App about you or your activities on the Website and/or the App, you agree that such information may be disclosed. You may request that we update or change the information you provided to us or to receive a copy of the information we have stored by emailing us at contact@sesamecare.com or by updating the information in your Member profile. We will make every reasonable effort to honor your wishes, or provide you with an explanation of why we cannot make the changes requested. We may request proof of identity before updating any information.
Confidentiality: You acknowledge and agree that Sesame has contributed significant time and resources to the formation, development, maintenance, use and marketing of the Sesame telemedicine marketplace platform (the "Platform"). You further acknowledge that, through your use of the Service(s), you may become privy to or aware of proprietary or confidential information of Sesame, including, but not limited to, information relating to the identity of patients utilizing the Platform, the Platform, and its formation, development, maintenance, use, and marketing (collectively, "confidential information"). In recognition of Sesame's contributions and of being provided with Sesame's confidential information, you agree: (a) except as required by law, to maintain the confidential information in the strictest confidence; and (b) to not, without the prior written consent of Sesame, directly or indirectly, use, disclose, or make available to any other person or entity any confidential information made known to you through the use of the Service(s) and/or the Platform.
Third Party Websites and Services
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Sesame has no control over such sites and resources and Sesame is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Sesame will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Sesame is not liable for any loss or claim that you may have against any such third party.
We may make payments to you through Stripe Connect. Your acceptance of payments is provided subject to the Stripe Connected Account Agreement.
Indemnity and Release
You agree to release, indemnify, defend and hold Sesame and its affiliates and its and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, liabilities, fines, fees, penalties, damages, costs, expenses, including reasonable attorneys’ fees, arising out of or related to any allegations, rights, claims, actions of any kind arising out of or related to: (i) injury (including death) or damage to property caused by your or your agents’ action or inaction; (ii) your use of the Service, (iii) any content or materials provided by you or your agents, (iv) your connection to the Service, (v) any Third-Party Services you provide, (vi) your violation of these Terms of Service, or (vii) your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred to the extent as a result of any breach of these terms by such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. IN NO EVENT WILL YOU HAVE ANY OBLIGATION TO INDEMNIFY ANY INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE TO THE EXTENT ARISING FROM ANY GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL MISCONDUCT COMMITTED BY ANY INDEMNITEE. ANY OBLIGATION TO INDEMNIFY AN INDEMNITEE FOR ANY LOSS, LIABILITY OR EXPENSE ARISING FROM ANY NEGLIGENT, GROSSLY NEGLIGENT, RECKLESS, WILLFUL, FRAUDULENT OR INTENTIONAL CONDUCT COMMITTED BY ANY INDEMNITEE MAY NOT BE ENFORCEABLE AGAINST ANY VISITOR OF THE SERVICES TO THE EXTENT REQUIRED BY APPLICABLE LAW, SUCH AS FROM CERTAIN JURISDICTIONS (SUCH AS NEW JERSEY).
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SESAME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
SESAME MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SESAME WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SESAME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL SESAME’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SESAME IN THE LAST TWELVE (12) MONTHS.
EXCEPT FOR YOUR OBLIGATIONS TO INDEMNIFY, DEFEND AND HOLD HARMLESS, YOUR OBLIGATIONS WITH RESPECT TO PRIVACY, CONFIDENTIALITY AND/OR DATA SECURITY (INCLUDING WITHOUT LIMITATION UNDER ANY BAA), YOUR BREACH OF APPLICABLE LAWS, AND/OR YOUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL YOUR TOTAL LIABILITY TO SESAME FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID (OR SHOULD HAVE PAID) SESAME IN THE LAST TWELVE (12) MONTHS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION AND RELEASE”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” Except as expressly agreed to in writing by Sesame, you agree that any and all disputes or claims that have arisen or may arise between you and Sesame, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Except as expressly agreed to in writing by Sesame, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Sesame are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator as set forth below, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND SESAME AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SESAME 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Sesame is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at contact@sesamecare.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Sesame should be sent to Sesame, 427 Broadway, New York, NY 10013 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Sesame and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Sesame may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Sesame or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Sesame is entitled.
Arbitration will be conducted by a neutral arbitrator administered by JAMS in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this Section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about the JAMS Rules and fees for disputes can be found at JAMS’ relevant page, https://www.jamsadr.com/rules-download/. If there is any inconsistency between any term of the JAMS Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Sesame and you agree otherwise, the seat of arbitration shall be New York, New York. If your claim is for $10,000 or less, Sesame agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Sesame will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Sesame will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Sesame will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the JAMS Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
Notwithstanding any provision in this Terms of Service to the contrary, Sesame agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Sesame written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Termination
You agree that Sesame, in its sole discretion, to the extent permitted under applicable law, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Sesame believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Sesame may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Sesame may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service, to the extent permitted under applicable law. Further, you agree that Sesame will not be liable to you or any third party for any termination of your access to the Service.
General
Except as otherwise agreed to in writing by Sesame, these Terms of Service, in conjunction with the Privacy Policy, constitute the entire agreement between you and Sesame and govern your use of the Service, superseding any prior agreements between you and Sesame with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service any separate agreements whereby we provide you Services will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, (a) for actions brought by you, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York; and (b) for actions brought by Sesame, Sesame may bring such actions in the state or federal courts where you are located. The failure of Sesame to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Sesame, but Sesame may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
We will not be deemed to be in breach of these Terms of Use or liable for any breach of these Terms of Use or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, disease, epidemic, pandemic, earthquakes or floods, civil disorder, strikes, fire or other disaster.
Access and Retention of Medical Records
Providers are solely responsible for capturing and retaining any and all information regarding individuals that an individual transfers or makes accessible to Provider. Provider is solely responsible for creating, storing, and maintaining any and all records, including medical records. The Parties agree that Sesame bears no responsibility for maintaining or preserving any Provider data, end user or patient data, or data related to the services provided to Provider or end users/patients through or in connection with the Services, including end user or patient data provided to Provider through use of the Services. Provider understands, acknowledges, and agrees it is solely responsible for preserving and making adequate backups of its data. Nothing in this Agreement limits or restricts Sesame’s ability to create its own records of the data and services provided or accessed through the Services to the fullest extent permitted by law.
Patients and other entities may request access to protected health information. Sesame recognizes that every individual has the right to access his or her PHI maintained in a designated record set. Although a patient’s right to obtain, copy, or inspect his or her medical records is not absolute, Sesame will respond to every request for access in accordance with the requirements of the HIPAA Privacy Rule and applicable state laws, and the procedures outlined in Sesame’s Access and Retention of Medical Records Policy, and the Business Associate Agreement between Sesame and Customer, if applicable. Providers listed on Sesame agree to comply with any requests for records pursuant to this Policy and the Business Associate Agreement, if applicable. Requests for access to PHI by parties other than the Patient shall require prior written authorization by the patient or must meet an exception under HIPAA and applicable state laws related to medical records requests.
Tele-Medicine
Some of our Services may include a tele-health online solution that allows participating medical professionals and health care staff (“Providers”) to communicate with their clients, customers and/or patients (collectively, “Patients”) to provide health care related services online and perform virtual house calls via Internet connection. We are not responsible for internet connectivity or lack thereof or problems or issues related to the use thereof. We are not a medical service provider, health insurance company, nor licensed to sell health insurance. The Services are not intended for use by Providers and/or Patients in connection with active patient monitoring so as to allow immediate clinical action or continuous monitoring.
The Providers who deliver services through our Service are independent professionals practicing within a group of independently owned professional practices. We do not practice medicine or any other licensed profession, and do not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his, her or their services and compliance with the requirements applicable to his/her/their profession and license.
Information provided by Providers and/or Patients is merely transmitted via the Services, not verified or endorsed by us, and is provided on an “as-is” basis and we disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose. We shall in no event be liable to you or to anyone for any decision made or action taken by any party (including, without limitation, any Service user) in reliance on information about Providers or Patients on the Service.
If you are a Provider, you accept responsibility for your Patients as well as yourself in the use of this Service. You are also responsible for the quality of the services you provide during your use of the Service and for complying with all applicable laws in connection with your use of the Service. Providers are responsible for obtaining and maintaining:
- Any and all Federal, State and local licenses and certifications which may be required to practice your profession when using this Service
- Medical malpractice and liability insurance in compliance with regulatory and local requirements. Provider shall maintain medical malpractice insurance in the amount of at least $1,000,000 per occurrence and $3,000,000 in the aggregate (the “Amounts”), which may be satisfied through a combination of primary and excess liability policies. If offering in-person care listed on Sesame, Provider’s medical malpractice insurance shall provide coverage for in-person encounters, and if offering telehealth care listed on Sesame, Provider’s medical malpractice insurance shall provide coverage for telemedicine encounters (the “Scope”). Provider shall immediately notify Sesame if at any time during the Provider’s relationship with Sesame, Provider no longer maintains medical malpractice insurance coverage with coverage equal to or greater than the Amounts or Scope required above; and
- Patient consent or authorizations if required by law and for complying with any and all federal and state privacy laws applicable to the use of this Service with your patients, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
- The above list is not an exhaustive list of requirements, and you are responsible for complying with all applicable laws in connection with your use of the Services.
The use of the Service by any entity or individual to verify the credentials of other Providers is prohibited.
Provider acknowledges and agrees that using the Services to broadcast materials prior to obtaining the intellectual property rights and/or third party consents required to make such copies is in violation of United States copyright laws. You shall indemnify and hold us harmless against any and all claims of copyright infringement. Further, you agree to indemnify and hold us harmless against any and all claims of copyright violations, which may rise out of any services, content, or materials you provide, share or display.
The Provider will use the Services only in accordance with applicable standards of good professional practice. While software products such as those available via the Services can facilitate and improve the quality of service that Provider and its personnel offer to Patients, many factors, including the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider shall be solely responsible for its use of the Services, and the provision of services, care and/or advice to Patients. In this regard, Provider releases us and waives all potential claims against us as a result of the Provider’s use of the Services, and the provision of services, care and/or advice to Patients. As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify and hold us harmless from any claim by or on behalf of any Patient, including those of Provider or its personnel, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a Patient, which is brought against us, regardless of the cause, if such claim arises for any reason whatsoever, out of the use or operation of the Site or Services. To the extent applicable, Provider will obtain our prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of us or defect in the Services.
Your Privacy
At Sesame, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to 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 (916) 445-1254 or (800) 952-5210. You may also contact us at contact@sesamecare.com.
Questions? Concerns? Suggestions?
Please contact us at contact@sesamecare.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.
Last Updated: June 28, 2023
Exhibit A
BUSINESS ASSOCIATE AGREEMENT
1 DEFINITIONS:The following terms shall have the following meaning when used in this Agreement:
1.1 “Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.
1.2 “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.
1.3 “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103.
1.4 “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated under these statutes.
1.5 “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).
1.6 “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Customer, or created, maintained or received on behalf of Customer.
1.7 “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402.
1.8 “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.
1.9 “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS.
1.10 “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Sesame. Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.
2 OBLIGATIONS AND ACTIVITIES OF SESAME:
2.1 Sesame agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
2.2 Sesame agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
2.3 Sesame agrees to report to the Customer any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 2(c) constitutes notice by Sesame to Customer of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Customer shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Sesame’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Sesame is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.
2.4 In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Sesame agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Sesame agree in writing to substantially the same, but no less stringent restrictions, conditions, and requirements that apply to Sesame under this Agreement with respect to such Protected Health Information.
2.5 Sesame agrees to make available Protected Health Information in a Designated Record Set to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.524 or any business associate agreement. In the event an individual requests access to Protected Health Information directly from Sesame, Sesame shall promptly notify Customer of such request so that Customer can respond directly to such individual in accordance with 45 C.F.R. § 164.524. Any denials of access to Protected Health Information requested by an individual shall be the sole responsibility of Customer. Individuals will be directed to submit appeals of Customer’s denial of access directly to Customer. If Sesame receives any such appeal, Sesame will forward it to Customer to handle and respond directly to the individual. Customer shall timely review and respond to such appeals in accordance with HIPAA and all other applicable law.
2.6 Sesame agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Customer pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.526 or any business associate agreement. In the event any individual requests amendment of PHI directly from Sesame, Sesame shall promptly notify Customer of such request so that Customer can respond directly to such individual in accordance with 45 C.F.R. § 164.5264. Any denials of amendment to the PHI requested by an individual shall be the sole responsibility of Customer. Individuals will be directed to submit statements of disagreement of an amendment denial directly to Customer. If Sesame receives any such statement, Sesame will forward it to Customer to handle and respond directly to the individual. Customer shall timely review and handle such statements in accordance with HIPAA and all other applicable law.
2.7 Sesame agrees to maintain and make available the information required to provide an accounting of disclosures to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.
2.8 To the extent that Sesame is to carry out one or more of Customer’s obligations under Subpart E of 45 C.F.R. Part 164, Sesame agrees to comply with the requirements of Subpart E that apply to Customer in the performance of such obligations.
2.9 Sesame agrees to make its internal practices, books, and records related to the use and disclosure of PHI available to the Secretary for purposes of determining compliance with HIPAA.
2.10 All reviews will be posted, except for the following:
- They include private personal contact information or information that could identify you
- They include harassment (they are harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic)
- The review is libelous against the clinician, contains false statements of scientific fact, or has the potential to confuse, mislead or deceive viewers regarding the appropriate, respective roles of the patient and clinician in making healthcare and treatment decisions (e.g. questions or disagrees with clinician’s professional judgment on treatment or prescription decisions without evidence, or purports to set forth generalized statements of accepted medical advice, such as "provider didn't treat xyz correctly," “I couldn’t get my medication or controlled substance,” “my prescription should have been 14 days, not 7,” “xyz always requires antibiotics but they wouldn’t prescribe”).
- Any review that relates to results or treatment that is obviously “too good to be true” (e.g., “After I met with Dr. Doe, I lost 25 pounds in 2 weeks!”) will be independently verified or else removed.
Sesame will not edit any review with the exception of removing personal information or information that may identify the reviewer.
3 PERMITTED USES AND DISCLOSURES BY SESAME:
3.1 Sesame may only use or disclose Protected Health Information as necessary to perform the Agreement. In addition, Sesame is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).
3.2 Sesame may use or disclose Protected Health Information as Required By Law.
3.3 Sesame agrees to make uses and disclosures and requests for Protected Health Information consistent with Customer’s minimum necessary policies and procedures.
3.4 Sesame may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Customer, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
3.5 Sesame may use Protected Health Information for the proper management and administration of Sesame or to carry out the legal responsibilities of Sesame.
3.6 Sesame may disclose Protected Health Information for the proper management and administration of Sesame or to carry out the legal responsibilities of Sesame, provided the disclosures are Required By Law, or Sesame obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notified Sesame of any instances of which it is aware in which the confidentiality of the information has been breached.
3.7 Sesame may provide Data Aggregation services relating to the Health Care Operations of Customer.
4 YOUR OBLIGATIONS AS CUSTOMER:
4.1 You shall notify Sesame in writing of any limitation(s) in your notice of privacy practices, or if you are a Business Associate, any Covered Entity served by you, under 45 C.F.R. 164.520, to the extent that such limitation may affect Sesame’s use or disclosure of Protected Health Information.
4.2 You shall notify Sesame in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Sesame’s use or disclosure of Protected Health Information.
4.3 You shall notify Sesame in writing of any restriction on the use or disclosure of Protected Health Information that you have agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Sesame’s use or disclosure of Protected Health Information.
4.4 Except with respect to uses and disclosures by Sesame of Protected Health Information under Sections 3.5, and 3.6 above, you shall not request Sesame to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Customer.
4.5 To the extent applicable, you shall obtain any consent, authorization, or permission that may be required by the Privacy Rule or other applicable federal or state laws and regulations before disclosing to Sesame any Protected Health Information pertaining to an Individual.
5 TERMINATION:
5.1 Obligations of Sesame Upon Termination. Upon termination of the Agreement for any reason, Sesame shall:
(i) Retain only that Protected Health Information which is necessary for Sesame to continue its proper management and administration or to carry out its legal responsibilities;
(ii) Return to you or your designee (to the extent permitted by HIPAA), or, if you request in writing , destroy the remaining Protected Health Information that the Sesame still maintains in any form;
(iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Sesame retains Protected Health Information;
(iv) Not use or disclose Protected Health Information retained by Sesame other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3.5 and 3.6 above, which applied prior to termination; and
(v) Return to Customer, or, if requested in writing by Customer, destroy Protected Health Information retained by Sesame when it is no longer needed by Sesame for its proper management and administration or to carry out its legal responsibilities.
5.2 Survival. The obligations of Sesame under this Section 5 shall survive the termination of the Agreement.
6 MISCELLANEOUS:
6.1 Regulatory References. A reference in this Exhibit A to a section in the HIPAA regulations means the provision as in effect or as amended.
6.2 Amendment. The parties agree to take such action as is necessary to amend this Exhibit A from time to time as is necessary for the Parties to comply with the requirements of the HIPAA and any other applicable law.
6.3 Interpretation. Any ambiguity in this Exhibit A shall be resolved to permit compliance with HIPAA.
6.4 Controlling Provisions. In the event that it is impossible to comply with both the Terms and Conditions and this Exhibit A, the provisions of this Exhibit A shall control with respect to those provisions of each agreement that expressly conflict, particularly regarding the use and disclosure of PHI.
Access and Retention of Medical Records
Providers are solely responsible for capturing and retaining any and all information regarding individuals that an individual transfers or makes accessible to Provider. Provider is solely responsible for creating, storing, and maintaining any and all records, including medical records. The Parties agree that Sesame bears no responsibility for maintaining or preserving any Provider data, end user or patient data, or data related to the services provided to Provider or end users/patients through or in connection with the Services, including end user or patient data provided to Provider through use of the Services. Provider understands, acknowledges, and agrees it is solely responsible for preserving and making adequate backups of its data. Nothing in this Agreement limits or restricts Sesame’s ability to create its own records of the data and services provided or accessed through the Services to the fullest extent permitted by law.
Patients and other entities may request access to protected health information. Sesame recognizes that every individual has the right to access his or her PHI maintained in a designated record set. Although a patient’s right to obtain, copy, or inspect his or her medical records is not absolute, Sesame will respond to every request for access in accordance with the requirements of the HIPAA Privacy Rule and applicable state laws, and the procedures outlined in Sesame’s Access and Retention of Medical Records Policy, and the Business Associate Agreement between Sesame and Customer, if applicable. Providers listed on Sesame agree to comply with any requests for records pursuant to this Policy and the Business Associate Agreement, if applicable. Requests for access to PHI by parties other than the Patient shall require prior written authorization by the patient or must meet an exception under HIPAA and applicable state laws related to medical records requests.
Tele-Medicine
Some of our Services may include a tele-health online solution that allows participating medical professionals and health care staff (“Providers”) to communicate with their clients, customers and/or patients (collectively, “Patients”) to provide health care related services online and perform virtual house calls via Internet connection. We are not responsible for internet connectivity or lack thereof or problems or issues related to the use thereof. We are not a medical service provider, health insurance company, nor licensed to sell health insurance. The Services are not intended for use by Providers and/or Patients in connection with active patient monitoring so as to allow immediate clinical action or continuous monitoring.
The Providers who deliver services through our Service are independent professionals practicing within a group of independently owned professional practices. We do not practice medicine or any other licensed profession, and do not interfere with the practice of medicine or any other licensed profession by Providers, each of whom is responsible for his, her or their services and compliance with the requirements applicable to his/her/their profession and license.
Information provided by Providers and/or Patients is merely transmitted via the Services, not verified or endorsed by us, and is provided on an “as-is” basis and we disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose. We shall in no event be liable to you or to anyone for any decision made or action taken by any party (including, without limitation, any Service user) in reliance on information about Providers or Patients on the Service.
If you are a Provider, you accept responsibility for your Patients as well as yourself in the use of this Service. You are also responsible for the quality of the services you provide during your use of the Service and for complying with all applicable laws in connection with your use of the Service. Providers are responsible for obtaining and maintaining:
- Any and all Federal, State and local licenses and certifications which may be required to practice your profession when using this Service
- Medical malpractice and liability insurance in compliance with regulatory and local requirements. Provider shall maintain medical malpractice insurance in the amount of at least $1,000,000 per occurrence and $3,000,000 in the aggregate (the “Amounts”), which may be satisfied through a combination of primary and excess liability policies. If offering in-person care listed on Sesame, Provider’s medical malpractice insurance shall provide coverage for in-person encounters, and if offering telehealth care listed on Sesame, Provider’s medical malpractice insurance shall provide coverage for telemedicine encounters (the “Scope”). Provider shall immediately notify Sesame if at any time during the Provider’s relationship with Sesame, Provider no longer maintains medical malpractice insurance coverage with coverage equal to or greater than the Amounts or Scope required above; and
- Patient consent or authorizations if required by law and for complying with any and all federal and state privacy laws applicable to the use of this Service with your patients, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
- The above list is not an exhaustive list of requirements, and you are responsible for complying with all applicable laws in connection with your use of the Services.
The use of the Service by any entity or individual to verify the credentials of other Providers is prohibited.
Provider acknowledges and agrees that using the Services to broadcast materials prior to obtaining the intellectual property rights and/or third party consents required to make such copies is in violation of United States copyright laws. You shall indemnify and hold us harmless against any and all claims of copyright infringement. Further, you agree to indemnify and hold us harmless against any and all claims of copyright violations, which may rise out of any services, content, or materials you provide, share or display.
The Provider will use the Services only in accordance with applicable standards of good professional practice. While software products such as those available via the Services can facilitate and improve the quality of service that Provider and its personnel offer to Patients, many factors, including the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider shall be solely responsible for its use of the Services, and the provision of services, care and/or advice to Patients. In this regard, Provider releases us and waives all potential claims against us as a result of the Provider’s use of the Services, and the provision of services, care and/or advice to Patients. As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify and hold us harmless from any claim by or on behalf of any Patient, including those of Provider or its personnel, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a Patient, which is brought against us, regardless of the cause, if such claim arises for any reason whatsoever, out of the use or operation of the Site or Services. To the extent applicable, Provider will obtain our prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of us or defect in the Services.
Your Privacy
At Sesame, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to 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 (916) 445-1254 or (800) 952-5210. You may also contact us at contact@sesamecare.com.
Questions? Concerns? Suggestions?
Please contact us at contact@sesamecare.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.
Last Updated: June 28, 2023
Exhibit A
BUSINESS ASSOCIATE AGREEMENT
The following terms shall have the following meaning when used in this Agreement:
1.1 “Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.
1.2 “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.
1.3 “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103.
1.4 “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated under these statutes.
1.5 “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).
1.6 “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Customer, or created, maintained or received on behalf of Customer.
1.7 “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402.
1.8 “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.
1.9 “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS.
1.10 “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Sesame. Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.
2 OBLIGATIONS AND ACTIVITIES OF SESAME:
2.1 Sesame agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
2.2 Sesame agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
2.3 Sesame agrees to report to the Customer any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 2(c) constitutes notice by Sesame to Customer of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Customer shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Sesame’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Sesame is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.
2.4 In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Sesame agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Sesame agree in writing to substantially the same, but no less stringent restrictions, conditions, and requirements that apply to Sesame under this Agreement with respect to such Protected Health Information.
2.5 Sesame agrees to make available Protected Health Information in a Designated Record Set to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.524 or any business associate agreement. In the event an individual requests access to Protected Health Information directly from Sesame, Sesame shall promptly notify Customer of such request so that Customer can respond directly to such individual in accordance with 45 C.F.R. § 164.524. Any denials of access to Protected Health Information requested by an individual shall be the sole responsibility of Customer. Individuals will be directed to submit appeals of Customer’s denial of access directly to Customer. If Sesame receives any such appeal, Sesame will forward it to Customer to handle and respond directly to the individual. Customer shall timely review and respond to such appeals in accordance with HIPAA and all other applicable law.
2.6 Sesame agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Customer pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.526 or any business associate agreement. In the event any individual requests amendment of PHI directly from Sesame, Sesame shall promptly notify Customer of such request so that Customer can respond directly to such individual in accordance with 45 C.F.R. § 164.5264. Any denials of amendment to the PHI requested by an individual shall be the sole responsibility of Customer. Individuals will be directed to submit statements of disagreement of an amendment denial directly to Customer. If Sesame receives any such statement, Sesame will forward it to Customer to handle and respond directly to the individual. Customer shall timely review and handle such statements in accordance with HIPAA and all other applicable law.
2.7 Sesame agrees to maintain and make available the information required to provide an accounting of disclosures to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.
2.8 To the extent that Sesame is to carry out one or more of Customer’s obligations under Subpart E of 45 C.F.R. Part 164, Sesame agrees to comply with the requirements of Subpart E that apply to Customer in the performance of such obligations.
2.9 Sesame agrees to make its internal practices, books, and records related to the use and disclosure of PHI available to the Secretary for purposes of determining compliance with HIPAA.
2.10 All reviews will be posted, except for the following:
- They include private personal contact information or information that could identify you
- They include harassment (they are harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic)
- The review is libelous against the clinician, contains false statements of scientific fact, or has the potential to confuse, mislead or deceive viewers regarding the appropriate, respective roles of the patient and clinician in making healthcare and treatment decisions (e.g. questions or disagrees with clinician’s professional judgment on treatment or prescription decisions without evidence, or purports to set forth generalized statements of accepted medical advice, such as "provider didn't treat xyz correctly," “I couldn’t get my medication or controlled substance,” “my prescription should have been 14 days, not 7,” “xyz always requires antibiotics but they wouldn’t prescribe”).
- Any review that relates to results or treatment that is obviously “too good to be true” (e.g., “After I met with Dr. Doe, I lost 25 pounds in 2 weeks!”) will be independently verified or else removed.
Sesame will not edit any review with the exception of removing personal information or information that may identify the reviewer.
3 PERMITTED USES AND DISCLOSURES BY SESAME:
3.1 Sesame may only use or disclose Protected Health Information as necessary to perform the Agreement. In addition, Sesame is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).
3.2 Sesame may use or disclose Protected Health Information as Required By Law.
3.3 Sesame agrees to make uses and disclosures and requests for Protected Health Information consistent with Customer’s minimum necessary policies and procedures.
3.4 Sesame may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Customer, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
3.5 Sesame may use Protected Health Information for the proper management and administration of Sesame or to carry out the legal responsibilities of Sesame.
3.6 Sesame may disclose Protected Health Information for the proper management and administration of Sesame or to carry out the legal responsibilities of Sesame, provided the disclosures are Required By Law, or Sesame obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notified Sesame of any instances of which it is aware in which the confidentiality of the information has been breached.
3.7 Sesame may provide Data Aggregation services relating to the Health Care Operations of Customer.
4 YOUR OBLIGATIONS AS CUSTOMER:
4.1 You shall notify Sesame in writing of any limitation(s) in your notice of privacy practices, or if you are a Business Associate, any Covered Entity served by you, under 45 C.F.R. 164.520, to the extent that such limitation may affect Sesame’s use or disclosure of Protected Health Information.
4.2 You shall notify Sesame in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Sesame’s use or disclosure of Protected Health Information.
4.3 You shall notify Sesame in writing of any restriction on the use or disclosure of Protected Health Information that you have agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Sesame’s use or disclosure of Protected Health Information.
4.4 Except with respect to uses and disclosures by Sesame of Protected Health Information under Sections 3.5, and 3.6 above, you shall not request Sesame to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Customer.
4.5 To the extent applicable, you shall obtain any consent, authorization, or permission that may be required by the Privacy Rule or other applicable federal or state laws and regulations before disclosing to Sesame any Protected Health Information pertaining to an Individual.
5 TERMINATION:
5.1 Obligations of Sesame Upon Termination. Upon termination of the Agreement for any reason, Sesame shall:
(i) Retain only that Protected Health Information which is necessary for Sesame to continue its proper management and administration or to carry out its legal responsibilities;
(ii) Return to you or your designee (to the extent permitted by HIPAA), or, if you request in writing , destroy the remaining Protected Health Information that the Sesame still maintains in any form;
(iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Sesame retains Protected Health Information;
(iv) Not use or disclose Protected Health Information retained by Sesame other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3.5 and 3.6 above, which applied prior to termination; and
(v) Return to Customer, or, if requested in writing by Customer, destroy Protected Health Information retained by Sesame when it is no longer needed by Sesame for its proper management and administration or to carry out its legal responsibilities.
5.2 Survival. The obligations of Sesame under this Section 5 shall survive the termination of the Agreement.
6 MISCELLANEOUS:
6.1 Regulatory References. A reference in this Exhibit A to a section in the HIPAA regulations means the provision as in effect or as amended.
6.2 Amendment. The parties agree to take such action as is necessary to amend this Exhibit A from time to time as is necessary for the Parties to comply with the requirements of the HIPAA and any other applicable law.
6.3 Interpretation. Any ambiguity in this Exhibit A shall be resolved to permit compliance with HIPAA.
6.4 Controlling Provisions. In the event that it is impossible to comply with both the Terms and Conditions and this Exhibit A, the provisions of this Exhibit A shall control with respect to those provisions of each agreement that expressly conflict, particularly regarding the use and disclosure of PHI.