DERMCAFE TERMS OF SERVICE, TERMS OF USE, PHOTO SUBMISSION POLICY AND APPOINTMENT POLICY

 

Terms of Service

 

BY CLICKING "I ACCEPT" OR BY ACCESSING OR USING OUR SERVICES OR CREATING AN ACCOUNT, YOU AGREE TO TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER SET FORTH HEREIN, YOU MAY NOT ACCESS OR USE THE SERVICES.

 

1. Nature of Services.

The Services enable you to schedule on-line visits with healthcare providers who are licensed in one or more Canadian Provinces via virtual care consultations (“Telemedicine Consultations”) and in-person visits in certain locations. The healthcare providers who are delivering the Telemedicine Consultations and in-person visits shall be collectively referred to herein as “Providers.” The Services are intended to allow you to ask Providers questions regarding non-emergency health-related issues relating to medical treatments.

 

Certain features of the Services may be subject to additional terms and conditions (“Additional

Terms”). We may present Additional Terms to you when you activate or use a feature to which

Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. For example, Additional Terms apply to the Services, as set forth below. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.

 

2. Privacy.

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

 

3. Eligibility to Use the Services.

To use the Services, you must be at least 18 years old. If you are not yet 18 years or older, or are a minor under applicable law, or are not legally able to form a binding agreement, a parent or legal guardian (“Parent/Guardian”) must accept these Terms on your behalf before you are permitted to use the App or Website and receive the Services. 

Specifically, to be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 18 years of age or older; (b) are a legal resident of Canada; (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (d) will only maintain one Account at any given time; (e) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times; and (f) agree to use your first name and your email address when registering (although you may use a fictitious name or initials after registration when using the Services). 

 

If you are accessing or using our Services on behalf of another person or entity you represent that you are authorized to accept these Terms on that person or entity's behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

 

4. Accounts, Account Security and Communication Preferences.

You may need to register for a user account ("Account") to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password, and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.

 

As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account. By creating an Account, you also consent to receive electronic communications from DermCafé (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

 

5. Additional Terms that Specifically Apply to Telemedicine Consultations

 

Additional Terms – Telemedicine Consultations 

Dial 911 in the event of a medical emergency! The Telemedicine Consultations are not intended to provide instructions or help in the event of an emergency. If you believe your condition or situation is life-threatening, please call 911 or your emergency medical system immediately. Do not rely on the Telemedicine Consultations with urgent medical needs. We cannot guarantee response times if you choose to use the Telemedicine Consultations in the event of a medical emergency. 

 

Providers of Telemedicine Consultations:

DermCafé provides a virtual care service using the mochiHealth platform to enable the delivery of Telemedicine Consultations by DermCafé Providers. To understand how information is processed to provide the Telemedicine Consultations, please review the DermCafé’s Privacy Policy.

 

Scope and Risks: The scope of the services delivered via video consults will be at the sole discretion of the Provider who is interacting with you, with no guarantee of diagnosis, treatment, or prescription. The Provider will determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter. 

 

By accepting these Terms, you are hereby consenting to receive Telemedicine Consultations from a Provider who is located at a site that is remote from you. Telemedicine Consultations are a type of “telemedicine” or “telehealth” service. As with any medical procedure, there are potential risks associated with the use of telemedicine or other forms of telehealth services, which may include, without limitation, the following: (a) delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the telehealth technology, or miscommunications between you and the Provider; (b) security protocols could fail, causing a breach of privacy of personal medical information; and (c) lack of access to your medical records or other information or ability to perform an in-person examination, which could result in negative health outcomes (e.g., adverse drug interactions or allergic reactions).

 

Your Location: You certify that you are physically located in the province you select in the Services as your current location at the time of your receipt of the Telemedicine Consultations. Your ability to access and use the Telemedicine Consultations is conditioned on the truthfulness of this certification. The Providers that you access through the Telemedicine Consultations rely upon this certification in order to interact with you. If your certification is inaccurate, you agree to indemnify DermCafé and the Providers with whom you interact from any resulting losses, damages, costs, or expenses. 

 

Payment for the Virtual Care Service: By providing a credit card or other payment method accepted by DermCafé (“Payment Method”), you are expressly agreeing that we are (or our service provider is) authorized to charge to the Payment Method for the total amount of your consultation fees for your use of the Telemedicine Consultations, together with any applicable taxes (collectively, as applicable, a “Purchase”). If the Payment Method cannot be verified, is invalid or is otherwise not acceptable, your Purchase may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Purchase. If a payment is not successfully settled and you do not edit your Payment Method information or cancel your Purchase or account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. 

 

You agree that authorizations to charge your Payment Method remains in effect until you cancel it in writing, and you agree to notify us of any changes to your Payment Method. You represent and warrant that you are authorized to use the Payment Method and will not dispute charges for the Telemedicine Consultations that correspond to consultation fees or the co-payment required by your health plan. 

 

We will collect applicable sales tax on services for which we determine we have a duty to collect sales tax. If a service is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

 

When scheduling a non-Medicare insured appointment with a provider, you will be required to provide a Payment Method. If you choose to cancel your scheduled appointment, you must do so at least 24 hours in advance of the scheduled appointment time. Should you choose to cancel your scheduled appointment within 24 hours of the scheduled appointment time, we may assess a reservation fee of up to the full cost of the canceled appointment.

 

You acknowledge and agree that fees for consultations may increase at any time.

 

Consent: By clicking “I accept” or by accessing or using the Telemedicine Consultations, you

acknowledge and accept the risks identified above and the terms associated with the receipt of

Telemedicine Consultations and you give your informed consent to receive such services under the Terms and the Additional Terms.

 

6. User Supplied Material.

 

Our Services may allow you to upload, store and share content, including messages, text, photos and other materials (collectively, "User Content"). Except for the license you grant below, as between you and DermCafé, you retain all rights in and to your User Content. You hereby grant DermCafé a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you. If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Any User Content posted publicly or sent privately is the sole responsibility of the person that submitted it. Although DermCafé reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.

 

7. Appropriate Use of the Services.

You agree to use the Services in accordance with all applicable local, provincial, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

  • Use or attempt to use another user’s Account without authorization from that user and DermCafé; 

  • Copy, reproduce, sell, rent, lease, distribute, transfer, modify or make derivative works from the Services or any Content; 

  • Remove, alter or tamper with any copyright, trademark or other proprietary rights or legal notices contained in any Content obtained from the Services; 

  • Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services;

  • Use the Services in any manner that could interfere in any way with the operation of the Services or any server, network or system associated with the Services, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Services or any server, network or system associated with the Services; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another's account that you are not expressly authorized to access;

  • Use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Services or any server, network or system associated with the Services, or to extract, collect, harvest or gather content or information from the Services; 

  • Frame or otherwise create a browser or border environment around any page or content of the Services, or deep-link to any internal page or area of the Services; or 

  • Make any other use of the Services that violates these Terms or any applicable law.

 

You may also only upload or otherwise share User Content that you have all necessary rights to

disclose. You may not upload, store or share any User Content that: 

  • is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; 

  • would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, provincial, national or international law; 

  • may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; 

  • impersonates, or misrepresents your affiliation with, any person or entity; 

  • contains any private or personal information of a third party without such third party’s consent; 

  • contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or 

  • is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose DermCafé or others to any harm or liability of any type.

If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through WiFi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) related to your use of the Services through your device. We do not guarantee that the Services are compatible with any particular operating system, browser, mobile device or other software or equipment.

 

8. Reservation of Rights.

We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to your or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (1) restrict, limit, suspend or terminate your and/or any other user's access to the Services; (2) monitor any user's use of the Services to verify compliance with these Terms and/or any applicable law; (3) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third-parties in such investigation; and (4) disclose information about any user's use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.

 

9. License to Access and Use Our Services and Content.

Unless otherwise indicated in writing by us, the Services and all content and other materials

contained therein, including, without limitation, the DermCafé logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of DermCafé or our licensors or users, as applicable, and are protected by Canadian and international copyright laws.

You are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to

access and use the Services and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of DermCafé or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time. 

Notwithstanding anything to the contrary in these Terms, the Services and Content may include

software components provided by DermCafé or a third party that are subject to separate license

terms, in which case those license terms will govern such software components.

 

10. Proprietary Rights.

DermCafé grants you a limited right to use the Services for your personal use. All original content, materials, features and functionality (including, without limitation, text, information, images, photos, graphics, artworks, logos, videos, audios, directories, listings, databases, and search engines) (the “Content”) are owned by DermCafé and/or its licensors and may be protected by Canadian and foreign copyright, trademark and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable right and license to access and use the Services and Content solely for your personal, non-commercial use; provided, however, that such license does not include any right to (a) sell, resell our Services and the Content; (b) copy, reproduce, distribute, publicly perform or publicly display Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the Content other than for their intended purposes. Except for the limited licenses granted to you, we reserve all other rights. This license may be revoked and terminated by us at any time and for any reason. Any unauthorized use, reproduction or distribution of the Services or Content is strictly prohibited and may result in

termination of the license granted herein, as well as civil and/or criminal penalties.

 

All trademarks, trade names and logos appearing on or through the Services are owned by us or licensed by us. The “DermCafé” name and logo and all other DermCafé names, marks, logos

and other identifiers are trademarks and service marks of DermCafé. Names, marks, logos and

other identifiers of third parties, including third party health care providers, are trademarks and

service marks of their respective owners. You may not use or display any DermCafé trademarks, trade names, or logos without our prior written permission. We reserve all rights.

 

11. Trademarks.

“DermCafé”, the DermCafé logo and any other DermCafé product or service names, logos

or slogans that may appear on the Services are trademarks of DermCafé and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “DermCafé” or any other name, trademark or product or service name of DermCafé without our prior written permission. In addition, the look and feel of the Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of DermCafé and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by DermCafé.

 

12. Third Party Content.

We may display content, advertisements and promotions from third parties through the Services

(collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.

 

13. Links to Third Parties.

The Services may contain links to third-party websites, products and/or services (each, a “Linked Third-Party Service”). Such links do not constitute or imply DermCafé’s approval, sponsorship or endorsement of any Linked Third-Party Service. DermCafé is not responsible for and makes no representations or warranties, express or implied, regarding any Linked Third-Party Service. When you access and use a Linked Third-Party Service, you are subject to that third party's terms and conditions of use and privacy policy. Any rights, claims or actions you may have in respect of a Linked Third-Party Service can only be brought directly against the provider of that Linked Third-Party Service. You access and use a Linked Third-Party Service solely at your own risk.

 

14. Feedback.

Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about DermCafé or the Services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of DermCafé. DermCafé shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

 

15. Release.

To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors,

administrators, legal and personal representatives, hereby release, waive, acquit and forever

discharge DermCafé and our owners, subsidiaries, affiliated companies, employees,

shareholders, or directors (collectively, the “DermCafé Parties) from and against, and covenant

not to sue any such DermCafé Party for, all claims you have or may have arising out of or in any

way related to these Terms.

 

16. Indemnification.

To the maximum extent permitted by applicable law, you agree to indemnify, defend and hold

harmless DermCafé Parties from and against all actual or alleged DermCafé Party or third

party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Services, Content or products purchased by you or any third party you authorize to access or use such Services, Content or products purchased through the Services, (b) any Feedback you provide, (c) your violation of these Terms, and (d) your violation of the rights of another. You agree to promptly notify DermCafé of any third party Claims, cooperate with the DermCafé Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the DermCafé Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and DermCafé.

 

17. Disclaimer of Warranties.

YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DermCafé EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, AND ACCURACY OF DATA. DermCafé MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR

FREE; NOR DOES DermCafé MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE

OBTAINED FROM THE USE OF THE SERVICES OR CONTENT, OR THAT DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR THAT ANY INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES OR CONTENT WILL BE ACCURATE OR COMPLETE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DermCafé OR THROUGH THE SERVICES OR CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE SERVICES AND CONTENT ARE NOT INTENDED TO PROVIDE A SUBSTITUTE FOR YOUR OWN SOUND AND REASONABLY PRUDENT JUDGMENT. PERSONS USING THE SERVICES AND CONTENT ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICES, CONTENT, MATERIALS AND OTHER INFORMATION PROVIDED, AND AGREE THAT DermCafé IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THEIR USE. YOUR RELIANCE ON THE SERVICES AND CONTENT OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK EXCEPT AS PROVIDED BY LAW. Some provincials may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. But, to the extent permitted by applicable law, we exclude all warranties. 

 

18. Limitations of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE

DermCafé PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,

PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY

DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY DermCafé PARTY, OR FROM EVENTS BEYOND THE DermCafé PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO

THE DermCafé PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE DermCafé PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE GREATER OF $500 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE DermCafé PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY. 

 

THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

 

19. Dispute Resolution; Arbitration.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH DermCafé AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER. This Section 19 applies to all Disputes between you and the DermCafé Parties.

 

We will try to work in good faith to resolve any issue you have with Site, including Products and Services ordered or purchased through the Site, if you bring that issue to the attention of our customer service department.  However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.

You and DermCafé agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including Products and Services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court.  Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the Supreme Court of Canada. You agree that, by agreeing to these Terms of Use, the Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and DermCafé are each waiving the right to a trial by jury or to participate in a class action.  This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and DermCafé.

If you desire to assert a claim against DermCafé, and you therefore elect to seek arbitration, you must first send to DermCafé, by certified mail, a written notice of your claim (“Notice”).  The Notice to DermCafé should be addressed to: 47 Cobbler Crescent, Markham Ontario, L3P6P5 (“Notice Address”). If DermCafé desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you.  A Notice, whether sent by you or by DermCafé, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If DermCafé and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or DermCafé may commence an arbitration proceeding or file a claim in small claims court.  During the arbitration, the amount of any settlement offer made by DermCafé or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the Canadian Arbitration Association at https://canadianarbitrationassociation.ca. If you are required to pay a filing fee, after DermCafé receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than CAD $10,000.  The arbitration will be governed by the Canadian Arbitration Association (“CAA”), as modified by these Terms of Use, and will be administered by the CAA. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless DermCafé and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of Canada, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the CAA Rules including the CAA rules regarding the selection of an arbitrator).  If your claim is for CAD $10,000 or less, we agree 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 CAA Rules. If your claim exceeds CAD $10,000, the right to a hearing will be determined by the CAA 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. If the arbitrator issues you an award that is greater than the value of DermCafé’s last written settlement offer made before an arbitrator was selected (or if DermCafé did not make a settlement offer before an arbitrator was selected), then DermCafé will pay you the amount of the award or CAD $1,000, whichever is greater.  Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the CAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

YOU AND DermCafé AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both you and DermCafé agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding.  The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Hillsborough County, Florida.

Force Majeure

We will not be deemed to be in breach of these terms or liable for any breach of these terms 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, earthquakes or floods, civil disorder, strikes, fire or other disaster.

22. Copyright/Trademark Information.
Copyright ©2020 DermCafé. All rights reserved.  All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties.  You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

 

23. International Users.

Use of the Services is intended solely for residents of Canada. The Services may contain

content, services, or information otherwise not accessible or valid in your country. Access to the

Services from outside Canada is at your own risk, and DermCafé does not take

responsibility for your use of the Services. Any offer for any product or service made on the Services is void where prohibited by law.

 

24. Termination.

Either you or we may terminate our relationship at any time, with or without cause. In addition, we may deactivate, terminate or suspend your account at any time: (a) if we, in our sole discretion, determine that you are or have been in violation of these Terms; (b) if we, in our sole discretion, determine that you have created risk or possible legal exposure for DermCafé; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material modification of the Services, or (e) due to unexpected technical issues or problems. We may also stop providing the Services or create limits on use of the Services (in each case, whether specifically to you or generally). 

 

These Terms automatically terminate when you fail to comply or if we reasonably believe that you have not complied with any term or condition of them. Termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.

 

25. App Updates.

DermCafé may from time to time, in its sole discretion (without obligation), develop and provide

updates for our App, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that DermCafé has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

 

Portions of the App may not properly operate if you do not install all Updates, so we encourage you to promptly install all updates. To that end, based on your mobile device settings, when your mobile device is connected to the Internet, either (a) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the App and subject to these Terms.

 

26. Apple Device Additional Terms.

If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running

Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:

  • Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device. 

  • Agreement with DermCafé, Not Apple. You acknowledge that these Terms are an agreement between DermCafé and you, and not with Apple. DermCafé, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.

  • Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. 

  • Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If DermCafé decides (in its sole discretion) to provide support and maintenance services for an iOS App, DermCafé is solely responsible for providing such services.

  • Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by DermCafé in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is DermCafé’s sole responsibility. Notwithstanding the foregoing, DermCafé is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.

  • Product Claims. You hereby acknowledge that DermCafé, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit DermCafé’s liability beyond what is permitted by applicable law. 

  • Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, DermCafé, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 

  • Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a Canadian Government embargo, or that has been designated by the Canadian Government as a “terrorist supporting” country; and (ii) you are not listed on any Canadian Government list of prohibited or restricted parties. 

  • Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.

  • Questions or Complaints. Please address your questions, complaints or claims with respect to an

 

27. Severability.

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

 

28. Miscellaneous.

These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and DermCafé relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of DermCafé. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and DermCafé‘s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

TERMS OF USE

Consent to Teledermatology Care
By agreeing to care at DermCafé, you consent to communicate and receive care using virtual and other telecommunications tools. You understand the risks of teledermatology care, including unauthorized disclosure, incorrect diagnosis/prescription, or interception of personal health information. During teledermatology care, you should take every step possible to protect your own information including use of a private computer/device (i.e., not an employer's or third party's computer/device), secure accounts, and a secure internet connection. You also understand that care provided through video or audio communication cannot replace the need for physical examination or an in-person visit for some disorders or urgent problems. Finally, you understand that our unique online platform does not provide care for the following: wounds, procedural care, medical emergencies, prescription for controlled substances, completion of school or disability forms or backdated sick notes. If you are experiencing a medical emergency, please call 911 or present yourself to an Emergency Department.

Consent to Patient Financial Responsibility
The following is applicable for services which have a fee: We appreciate the confidence you have shown in choosing DermCafé to provide your healthcare needs. Some of the medical services offered at our Centre have an associated fee. If you selected a service with a fee, as is outlined on our online platforms, it implies a financial responsibility on your part, and obligates you to ensure payment in full of our fees. You are responsible for payment of any costs charged by DermCafé. We expect these payments at the time of service. Since we do not participate in insurance plans, the entire cost of the visit and any laboratory tests are your responsibility. Submission of claims to your insurance company are your responsibility. In signing below, you hereby give permission to DermCafé to release any information concerning your treatment to insurance companies only if you have elected to have DermCafé file a claim on your behalf. In signing below, you acknowledge that you have read the above policy regarding your financial responsibility to DermCafé for providing services to you. You certify that the information is to the best of your knowledge, true and accurate. You authorize any payment to DermCafé or the physician indicated, the full and entire amount of the bill incurred by you or the above named patient.

Consent to Contact
I hereby consent to DermCafé with regard to calling my home, cell phone, business phone or other designated means of communication and leaving a message on my voicemail or in-person in reference to anything that assists in carrying out treatment, payment, and healthcare operations, including but not limited to appointment reminders, and any call pertaining to clinical care, including laboratory results, medications, and other information relating to treatment. I hereby consent to DermCafé with regard to mailing me materials to my home or other designated address, text messaging or e-mailing me regarding anything pertaining to my clinical care, including PHI and other matters related to treatment, such as appointment reminders and patient statements, or payment for services. I acknowledge that DermCafé cannot and does not guarantee the privacy, security, or confidentiality of an e-mail message or text message sent or received.

Consent to Treatment
I hereby request and consent to diagnostic and medical treatment by DermCafé, as deemed necessary in the professional medical judgement of my treating physician. I am aware the practice of medicine and related procedures is not an exact science and I acknowledge that no guarantees as to the outcome of any procedures, treatments or examinations have been made to me during my course of care. Furthermore, I give consent to DermCafé to take photographs or other images of me as they relate to my care, which made be used for purposes of documenting my medical status, for my medical benefit and for the purpose of medical education and training. For female patients: Many oral and topical medications prescribed by dermatologists are unsafe for use during pregnancy. Please inform your Provider(s) if you are pregnant, breastfeeding, or planning to become pregnant at any time while under the care of DermCafé.
General Release & Acknowledgement of Receipt of Notice of Privacy Practices
I, acknowledge and agree that I have had the right to review a copy of the DermCafé Notice Privacy Policy prior to signing this consent, which provided me a more complete description of potential uses and disclosures of my protected health information (PHI). I hereby consent to DermCafé physicians, outside providers who are involved in my care, to obtain payment. I am aware that DermCafé disclaims any liability or harm resulting from my incorrect or incomplete provision of my primary care physician's contact information, and that DermCafé reserves the right to revise its Privacy Policy at any time. I am also aware that an updated copy of DermCafé Privacy Policy is available on the DermCafé website at dermcafecanada.com.

PHOTO SUBMISSION POLICY

Safety is our top concern. Clear photos are required for your Doctors to diagnose and treat you safely. Video quality is often variable, so we cannot rely on the Video Visit to completely assess your skin. Please follow our photo-submission guidelines below. All modern photo devices are capable of capturing photos of sufficient quality for our online care.
If our Doctors determine your photo is too blurry/does not follow our guidelines, it will be deemed unsafe to provide online care and your appointment may be cancelled. In this case, you are advised to either re-submit acceptable photos or seek in-person care.

GUIDELINES:

  • We require at least 2 photographs:

  • #1) From far away (30cm)

  • #2) Close up (5-10 cm) of all area(s) of notable concern

  • All photos must be clear and in-focus. Tapping the centre of interest on a phone camera often helps

  • Use either fluorescent lighting or natural sunlight to improve contrast

  • Show the entire area that is involved, not just a small part

  • Take pictures against a solid white, or off--white background

  • Include a ruler or coin in the photo so the doctor can measure size

  • For hands and feet, take pictures of both the top and the bottom



APPOINTMENT POLICY

Please check in a minimum of 15 minutes before your appointment.
It often takes several minutes to set up and orient if it is your first visit. Otherwise, your Physician can see you as early as you check in, pending availability

Please don’t be late. If you are late, we may move your appointment towards the end of the day
Because of high demand for our services, we take every measure to stay on schedule. If you are late, we will try our absolute best to see you around the time of your appointment. However, in order to prevent missing appointments with all the other patients scheduled after you, we reserve the right to change your appointment to another time (for example, the end of day, or the next day).


Cancellations and No-Shows will incur a charge: Our Doctors reserve your appointment time specifically for you. Every missed/cancelled appointment negatively impacts other patients on the waitlist, as well as the Doctor's workday. We provide you with the flexibility to re-book or cancel ahead of time. Therefore, if you cancel within 24 hours or miss your appointment, you will be charged $50 when you reschedule. A second missed/cancelled appointment will incur a $150 charge. If you continue to miss/cancel your appointments after that, we will recommend you seek dermatology care elsewhere.

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©2020 DermCafé

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