Terms and Conditions

Last updated: October 01, 2016

I. Overview

Please read these Terms of Service (“Terms”) carefully before using the Fruit Street Service.

These Terms include Fruit Street’s Privacy Policy, which is incorporated by reference into these Terms. If you are a Health Service Provider (defined below) or Covered Entity pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), you are also subject to the terms and conditions of a Business Associate Agreement between you and Fruit Street. If you are a Patient (defined below), you may be subject to additional terms provided by your Health Service Provider.

Binding Agreement. These Terms constitute a binding agreement between you and Fruit Street, Inc. and its affiliates and subsidiaries (“Fruit Street,” “we,” “us,” “our”). “You,” “Your” and “Users” shall refer to (1) all Health Service Providers (defined below) and their agents and employees who use the Fruit Street Service, and (2) any Patients (defined below) of such Health Service Providers or other users of the Fruit Street Service. You accept these Terms when you use Fruit Street Service, including when you visit our website at www.fruitstreet.com, or when you download any Fruit Street mobile app or software, and each time you access the Fruit Street Service thereafter. If you do not accept these Terms, you must not use the Fruit Street Service.

Revisions to Terms. We may revise these Terms at any time by posting an updated version to this web page. You should visit this page periodically to review the most current Terms, because you are bound by them. Your continued use of the Fruit Street Service after a change to these Terms constitutes your binding acceptance of these Terms.

Definitions

“Health-Related Information” or “Protected Health Information” (collectively, “PHI”) means all individually identifiable health information, including demographic information and information related to an individual’s physical or mental health, the provision of health care to the individual, or the individual’s payment for the provision of health care.

“Health Service Provider” means an entity that provides health-related services, including any Covered Entity under HIPAA.

“Patient” means an individual registered through the Fruit Street Service other than as a Health Service Provider, regardless of whether that individual has yet purchased or registered for health-related services through the Fruit Street Service.

The terms “post” and “posting” as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the Fruit Street Service.

 

II. The Fruit Street Service and Important Limitations

The “Fruit Street Service” is defined as any computer or mobile application, website or software under Fruit Street’s ownership or control, whether partial or otherwise. The Fruit Street Service provides an online weight management and telehealth platform for virtual health care visits via video conferencing, remote behavioral health monitoring, online scheduling and payments, and personal health records.  Fruit Street may add or discontinue features at its discretion.

Medical Advice. Fruit Street does not give medical advice. Any information and materials provided by Fruit Street are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. If you are a Patient, the Fruit Street Service may connect you with Health Service Providers, however, you assume full risk and responsibility for the use of any information, materials, and/or diagnosis you obtain from or through these Health Service Providers. If you are a Health Service Provider, you are solely responsible for the professional and technical services you provide. In addition, Fruit Street does not recommend or endorse any Health Service Provider or health-related products, items, or services.

Screening Users. Fruit Street does not screen its Users or verify information communicated through the Fruit Street Service, though Fruit Street reserves the right to monitor such information. Fruit Street does not have responsibility for the conduct of its Users, including the information posted by Users, medical advice provided by Users, or other information. Contact us at laurence@fruitstreet.com to notify of us of inappropriate or illegal conduct or content you encounter on the Fruit Street Service.

Third-Party Services. The Fruit Street Service may include, interact with, or utilize certain third-party software and services (e.g. fitness monitoring companies). Your use of such software or services may require that you enter into separate subscription or licensing agreements with third-party vendors and suppliers. You agree to comply with such agreements as may be required for the use of such software or services.

No Third-Party Access. Except as required by law and described below, you will not permit any third party to have access to the Fruit Street Service using your account.

Health Service Provider Employee Access. Health Service Providers may allow their employees to use the Fruit Street Service on their behalf in compliance with these Terms. Health Service Providers remain solely responsible for the use of the Fruit Service by their employees, including any unlawful access to or use of the Fruit Street Service by their employees.   If you are a Health Service Provider using the Fruit Street Service, you agree that you are responsible for ensuring that Health-Related Information is properly protected under applicable law. The forgoing obligates you to ensure all login credentials are kept confidential and secure.

Patients’ Consent for Data Collection and Use.   If you are a Health Service Provider using the Fruit Street Service, you represent and warrant that you have obtained the proper consents, authorizations, and releases from individuals to the fullest extent required by applicable law, including HIPAA, before posting, transmitting or providing their Health-Related Information or PHI to the Fruit Street Service or initiating any payment transactions.

Exporting Information from the Fruit Street Service. You are solely responsible for any Health-Related Information exported from the Fruit Service by you or your agents or by any third-party to who you grant access to the Fruit Street service with your credentials. If you are a Health Service Provider using the Fruit Street Service, you represent and warrant that you will export and subsequently use PHI only as permitted by HIPAA and applicable federal and state law.

Transferring Information into the Fruit Street Service. You may be able to transfer information from your or third-party data sources into the Fruit Street Service. If you are a Health Service Provider, you represent and warrant that you have all necessary patient authorization for such data transfers and that such data transfers will comply with HIPAA, industry regulations governing use of payment card data, and other applicable federal and state law.  If you are a Patient, you represent and warrant that such information only relates to you and that you have all necessary rights to transfer the information into the Fruit Street Service.

Training and Compliance. Health Service Providers agree to train all employees on the use of the Fruit Street Service, HIPAA or health privacy obligations, and the requirements of these Terms and ensure that they comply with such requirements.

Compulsory Information Disclosure. You will promptly notify us of any order or demand for compulsory disclosure of Health-Related Information if the disclosure requires access to or use of the Fruit Street Service. You will cooperate fully with us in connection with any such demand.

Data Retention. Health Service Providers are responsible for complying with all state and federal laws related to retention of medical data and records, patient access and amendment to information, and patient authorization to release data.

 

III. Payments

Health Service Providers:

The Fruit Street Service allows you to collect payment from Patients for the services you provide to them.

Health Service Providers are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through the Fruit Street Service.  Fruit Street is not responsible for collecting, reporting, paying, or remitting to you any such taxes, fees, or service charges.

Health Service Providers are responsible for paying to Fruit Street the subscription fee agreed to by the Health Service Provider at the time of registration to use the Fruit Street Services (the “Subscription Fee”).  Unless otherwise noted at registration, the Subscription Fee will be charged monthly to the payment method provided at registration. Fruit Street may change the Subscription Fee from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Subscription Fees will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Fruit Street Services after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the Fruit Street Services prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.

The Fruit Street Service uses third parties to process payments. Use of such third-party payment services is subject to their terms and conditions of use. Such third parties may charge fees to process payments, and Fruit Street is not responsible for them.  You may be required to maintain an account with our designated payment vendor to receive and payments.

For Patients:

Health Service Providers may require payment for certain services they offer through the Fruit Street Services.  Payment may be remitted for service through our third-party vendor, Stripe, which accepts all major credit cards. You are responsible for any transaction fees charged by the payment vendor or by Fruit Street.  Further, you are responsible for all other taxes and governmental fees assessed by Health Service Providers on the site.  For more information on the payments and the security of your payment information please see our fruitstreet.com/privacy.

Whether or not you may receive a refund is at the sole discretion of the Health Service Provider and subject to their individual refund policies.  Fruit Street is not responsible for refunding any payments made for unsatisfactory or ineffective services from a Health Service Provider.  Please contact the Health Service Provider directly with any concerns.

IV. Protected Health Information Practices

When we maintain or process protected health information (“PHI”), as such term is defined by the Health Insurance Portability and Accountability Act of 1996, and any amendments and regulations promulgated therefrom (“HIPAA”), we comply with the terms of any business associate agreement we have entered into with Health Service Providers and the terms of HIPAA, to the extent applicable to Business Associates.

If you are a Health Service Provider, by using the Fruit Street Service:

You agree that you are a Covered Entity as defined by and governed by HIPAA;

You agree to enter into a business associate agreement with Fruit Street, available at fruitstreet.com/terms-and-conditions and incorporated by reference into these Terms, unless you or your organization have agreed to a different business associate agreement with Fruit Street that applies to your use of the Fruit Street Service; and

You agree to use the Fruit Street Service only as permitted by HIPAA and other applicable state and federal data privacy laws.

V. Account Verification and Secure Credentials

Account Verification. If you register as a Health Service Provider, we may take steps to verify that you are in fact a Health Service Provider. You agree that we may terminate your account at any time if we are unable to determine or verify your credentials as a Health Service Provider.

Protecting Your Log-In Credentials. As a registered User, you will have log-in information, including a username and password. You will be responsible for all activity that occurs under your account and access credentials, and you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Fruit Street Service. You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Fruit Street by e-mail to laurence@fruitstreet.com. You will be solely responsible for the losses incurred by Fruit Street and others (including, if applicable, your Patients) due to any unauthorized use of your account.

VI. Additional Provider Terms and Conditions

If you are a Health Service Provider, you may have the option with the Fruit Street Service to post and obtain Patient consent to additional terms and conditions promulgated by your practice (“Provider Terms”).  As a Health Service Provider, you agree that:

  • the Provider Terms will not contain any provision that conflicts with these Terms;
  • in the event of any conflict or perceived conflict between these Terms and the Provider Terms, these Terms shall prevail over any Provider Terms; and
  • Provider Terms shall include (i) a express statement that Fruit Street is not a party to the Provider Terms and (ii) an express waiver of liability in favor of Fruit Street.

 

VII. Fruit Street’s Content Ownership and Use

The content of the Fruit Street Service includes: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other content (collectively, “Fruit Street Content”). All Fruit Street Content and the compilation (meaning the selection, arrangement, and assembly) of all Fruit Street Content are the property of Fruit Street or its licensors and are protected under copyright, trademark, and/or other laws.

Limited License Grant. We hereby grant you a limited, revocable, non-exclusive, license to access and use the Fruit Street Content solely for the use of the Fruit Streets Services in accordance with these Terms. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Fruit Street Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Fruit Street Content on any copy you make of the Fruit Street Content.

Fruit Street Marks. The phrase “Fruit Street”, the Fruit Street logo, and other Fruit Street logos and product and service names are or may be trademarks of Fruit Street (the “Fruit Street Marks”). You agree not to display or use in any manner the Fruit Street Marks without our prior permission.

VIII. Your Intellectual Property Rights and Your License to Use

Fruit Street Claims No Ownership over Your User Content. The Fruit Street Service may provide you with the ability to create, post, or share content (“Your User Content”).  Fruit Street claims no ownership over Your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the Fruit Street Service. You are responsible for protecting those rights. You also acknowledge and agree that any of Your User Content that you post is non-confidential and non-proprietary. For clarification, Your User Content does not include any Health Related Information or other personal information, unless you post such information in a public area of the site.

Fruit Street’s License to Your User Content. By creating, posting, or sharing Your User Content on or through the Fruit Street Service, and subject to Fruit Street’s Privacy Policy, you grant Fruit Street a perpetual, world-wide, non-exclusive, non-transferable, royalty-free license to use, modify, remove, publish, transmit, or display Your User Content for any purpose, including for the purpose of promoting Fruit Street and its services. You waive any rights you may have regarding Your User Content being altered or manipulated in any way that may be objectionable to you. Fruit Street reserves the right to refuse to accept, post, display, or transmit any User Content in its sole discretion.

You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, as a result of your use of the Fruit Street Service, any right, title, or interest in or to content delivered via the Fruit Street Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in such content.

You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the content posted by you on or through the Fruit Street Service or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the Fruit Street Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the Fruit Street Service does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Fruit Street Service.

IX. User Content Disclaimers, Limitations, and Prohibitions

Fruit Street does not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by Users. You accept that any reliance on material posted by other Users, Fruit Street, or vendors or suppliers of Fruit Street, will be at your own risk. By using the Fruit Street Service you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.

You agree to use the Fruit Street Service only for its intended purpose and in an authorized manner. You must use the Fruit Street Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. Without limiting the foregoing, the following uses of the Fruit Service are expressly prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Fruit Street Service, user accounts, or the technologyequipment supporting the Fruit Street Service;

  • frame or link to the Fruit Street Service without permission;
  • use data mining, robots, or other data gathering devices on or through the Fruit Street Service, unless specifically allowed by these Terms;
  • post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
  • disclose personal information about another person or harass, abuse, or post objectionable material;
  • sell, transfer, or assign any of your rights to use the Fruit Service to a third party without our express written consent;
  • post advertising or marketing links or content, except as specifically allowed by these Terms;
  • use the Fruit Street Service in an illegal way or to commit an illegal act in relation to the Fruit Street Service or that otherwise results in fines, penalties, and other liability to Fruit Street or others; or
  • access the Fruit Street Service from a jurisdiction where it is illegal or unauthorized.

 

 

X. Consequences of Violating These Terms

We reserve the right to suspend or terminate your account and prevent access to the Fruit Street Service for any reason, at our discretion. We reserve the right to refuse to provide the Fruit Street Service to you in the future.

We may, but are under no obligation to, review and remove any user content at any time for any reason, including for activity which, in our sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the Fruit Street Service.

You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Fruit Street Service.

XI. Fruit Street’s Liability for Changes; Content Accuracy; User Disputes

Changes to the Fruit Street Service. Fruit Street may change, suspend, or discontinue any aspect of the Fruit Street Service at any time, including hours of operation or availability of the Fruit Street Service or any feature, without any notice or liability.

User Disputes. We are not responsible for any disputes or disagreements between You and any third party with whom You interact using the Fruit Street Service, including payment processors. We are also not responsible for disputes or disagreements between any Health Service Provider or Patient. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You hereby release Fruit Street of all claims, demands, and damages in disputes among Users of the Fruit Street Service. You also agree not to involve us in such disputes, including any disputes involving Provider Terms.

Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Fruit Street Service, including Health-Related Information. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from third-party vendors or suppliers or the quality or nature of third-party products or services obtained in connection with the Fruit Street Service. Use the Fruit Street Service at your own risk.

XII. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE FRUIT STREET SERVICE IS AT YOUR SOLE RISK, AND THE FRUIT STREET SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND FRUIT STREET, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY THE “RELEASED PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE FRUIT SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE FRUIT STREET SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE FRUIT STREET SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FRUIT STREET SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE FRUIT STREET SERVICE WILL MEET YOUR EXPECTATIONS, , AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FRUIT STREET SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

XIII. LIMITATION OF LIABILITY AND INDEMNIFICATION

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU, YOUR EMPLOYEES, AGENTS, OR AFFILIATES, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FRUIT STREET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE FRUIT STREET SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE FRUIT STREET SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE FRUIT STREET SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE FRUIT STREET SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE FRUIT STREET SERVICE OR YOUR USE OF FRUIT STREET CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.

Indemnification

You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, losses, damages, liabilities, actions, demands, and costs, including without limitation reasonable legal and accounting fees, arising out of third-party claims resulting from (i) your breach of these Terms; (ii) Your breach of any Provider Terms; (iii) Your User Content uploaded to the Fruit Street Service; (iv) you infringement of any third-party U.S. or international trademark, copyright, patent or trade secret right; (v) any activity on the Fruit Street Service under your log-in credentials, (vi) any unauthorized access to or use of Patient information under your control; (vii) any advice, treatment, or diagnoses you have provided through the Fruit Street Service; and (viii) any bodily injury, including death, of a third-party caused by your negligence, recklessness, or willful misconduct. We shall provide notice to you promptly of any such claim, suit, or proceeding.

XIV. General Terms

These Terms constitute the entire agreement between you and Fruit Street concerning your use of the Fruit Street Service. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect.

Access to or use of the Fruit Street Service shall not be construed as Fruit Street’s purposeful availment of the privilege or benefits of doing business in any state or legal jurisdiction other than the State of New York. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law provisions. Additionally, any claims brought against Fruit Street shall be governed by and construed in accordance with the laws of the State of New York. Sole and exclusive jurisdiction for any action or proceeding arising out of, or related to, these Terms, or use of the Fruit Street Service, shall be in the state or federal courts located in the State of New York.

XV. Contact Information

Fruit Street, Inc.
16th Floor
85 Broad Street
New York, NY 10004
laurence@fruitstreet.com