Terms of Use

Effective: March 1, 2018

Use of the Site. SkyMD, Inc. (“SkyMD”, “we”, “us”, or “our”) operates the website located at www.skymd.com and other related websites and mobile applications with links to these Terms of Use (collectively, the “Site”). Through the Site, we offer an online technology platform (the “Platform”) enabling our members (“Members”) to report their health history and engage health care professionals (“Treating Providers”) to obtain medical and health care services, including but not limited to medical diagnosis and treatment of certain dermatological conditions (“Services”). By accessing and using the Site, you agree to be bound by these Terms of Use and all other terms and policies that appear on the Site. If you do not wish to be bound by any of these Terms of Use, you may not use the Site or the Platform. You further agree that the limitations set forth in these Terms of Use are fundamental elements of the agreement between you and us and that the Site and the Platform would not be provided to you absent such limitations.

THE PLATFORM AND ALL SERVICES BY TREATING PROVIDERS VIA THE PLATFORM ARE NOT A SUBSTITUTE FOR OTHER MEDICAL CARE YOU MAY NEED.

IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY,

CALL 911 OR SEEK EMERGENCY MEDICAL HELP.

Health Care Services. Each of the Treating Providers who deliver Services through SkyMD is an independent health care professional solely responsible for all Services he or she provides to you. SkyMD does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Treating Providers, each of whom is responsible for his or her Services and for compliance with the requirements applicable to his or her profession and license. Neither SkyMD nor any third parties who promote the Platform or provide you with a link to the Platform shall be liable for any professional advice or Services you obtain from a Treating Provider via the Platform. USE THE PLATFORM AND ENGAGE IN SERVICES BY TREATING PROVIDERS AT YOUR OWN RISK.

Site Content. None of the Site content (other than information you receive from Treating Providers) should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for you.

Informed Consent

A. Telehealth is the delivery of medical and healthcare services virtually, where the patient and the health care professional are not in the same physical location. During your telehealth consultation with a Treating Provider, details of your medical or health history and personal health information will be collected from you.

B. THE MEDICAL CARE YOU RECEIVE FROM YOUR TREATING PROVIDER THROUGH SKYMD IS NOT A SUBSTITUTE FOR OTHER MEDICAL TREATMENT YOU MAY NEED. You should seek emergency help or follow-up care when recommended by a Treating Provider or when otherwise needed, and continue to consult with your primary care physician and other health care professionals as recommended. Your Treating Provider may make arrangements for follow up care either through SkyMD, a health systems partner, or other health care providers. Among the benefits of our Platform are improved access to health care professionals and convenience. However, as with any medical or health service, there are potential risks associated with the use of telehealth. These risks include, but may not be limited to:

· In rare cases, information transmitted may be insufficient or incomplete (for example, poor resolution of images) to allow for appropriate medical or health care decisionmaking by the Treating Provider;

· Delays in evaluation or treatment could occur due to failures of the electronic equipment, systems, and technology; and

· Although the electronic equipment, systems, and technology we use incorporates network and software security protocols to protect the privacy and security of health information, in rare instances, such privacy and security protocols could fail, causing a breach of privacy of personal health information.

C. By accepting these Terms of Use, you acknowledge that you understand and agree with the following:

· You understand that you may expect the anticipated benefits from the use of telehealth in your care, but that no results can be guaranteed or assured.

· You understand that the laws that protect the privacy and security of protected health information apply to telehealth, and you have received SkyMD’s Notice of Privacy Practices, which describes these protections in more detail.

· If your health insurance coverage does not include or is not sufficient to satisfy in full the charges for Services via the Platform, you may be fully or partially responsible for payment of any balance of charges.

· Your Treating Provider, in his or her sole discretion, may determine that telehealth services are not appropriate for some or all of your treatment needs, and accordingly may elect not to provide Services to you through the Platform.

· You will select a preferred Treating Provider through this Platform. You understand and agree that your preferred Treating Provider may, in cases when he or she is not available, designate another Treating Provider in his or her practice to provide your evaluation and/or follow-up treatment during such period of unavailability.

Privacy

SkyMD is required to comply with the health privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended from time to time, and all health privacy and security regulations promulgated thereunder and to maintain safeguards to protect the security of your protected health information. We devote considerable effort toward ensuring that your personal information is secure. Our policies regarding use of health and other personal information is provided in our Site Privacy Policy and health information Notice of Privacy Practices. As part of providing you the Platform, we may need to provide you with certain communications, such as appointment reminders, service announcements and administrative messages. These communications are considered part of the Platform and your Account (as defined below). While secure electronic messaging is always preferred to insecure email, under certain circumstances, insecure email communication containing personal health information may take place between you and SkyMD. We cannot ensure the security or confidentiality of messages sent by email.

User Account

When you register on the Site, you are required to create an account (“Account”) by entering your name, email address, password and certain other information collected by SkyMD (collectively “Account Information”). To create an Account, you must be of legal age to form a binding contract. If you are not of legal age to form a binding contract, you may not register to use the Platform. You agree that the Account Information that you provide to us at all times, including during registration and in any information you upload to the Site will be true, accurate, current, and complete. You may not transfer or share your Account password with anyone, or create more than one Account (with the exception of subaccounts established for children of whom you are the parent or legal guardian). You are responsible for maintaining the confidentiality of your Account password and for all activities that occur under your Account. SkyMD reserves the right to take any and all action, as it deems necessary or reasonable, regarding the security of the Site and your Account Information. In no event and under no circumstances shall SkyMD be held liable to you for any liabilities or damages resulting from or arising out of your use of the Site, your use of the Account Information or your release of the Account Information to a third party. You may not use anyone else’s account at any time.

Use of the Site and the Platform by Minors

The Site and the Platform are available for use by minor solely at the supervision of their parents or legal guardians. The Member for each user under the age of 18 must be the user’s parent or legal guardian. If you register as the parent or legal guardian on behalf of a minor, you will be fully responsible for complying with these Terms of Use and for ensuring that such minor’s use of the Site and the Platform comply with these Terms of Use.

Use of the Site and the Platform by Healthcare Providers

Healthcare Providers may wish to use the Site and the Platform for consultation purposes. If you are a Healthcare Provider and are using the Site and the Platform for consultation purposes, you agree that you have obtained all appropriate consents from your patients and all appropriate authorizations if your patient is a minor or is not capable of giving consent.

Use of the Site and the Platform by Caregivers

You may wish to authorize your Caregiver to use this Site and the Platform on your behalf. If you choose to do so, you agree to indicate on the Patient Telemedicine Consent Form that your Caregiver is authorized to act on your behalf.

Use of the Site and the Platform by Telepresenters

Some states may require you to be accompanied by a Telepresenter in order for a Treating Provider to render the Services or for purposes of coverage or reimbursement for the Service or may require you to be physically located at a healthcare facility. If you are located in a state with a Telepresenter requirement, you agree to include the name of the Telepresenter and, if required, the professional qualifications of the Telepresenter (e.g. RN, LPN). If you are required to be located in a health care facility, you will so indicate on the log in screen.

Access Rights

We hereby grant to you a limited, non-exclusive, nontransferable right to access the Site and use the Platform solely for your personal, non-commercial use and only as permitted under these Terms of Use and any separate agreements you may have entered into with us (“Access Rights”). We reserve the right, in our sole discretion and for any reason, to deny or suspend anyone’s use of the Site or the Platform, including access to a Treating Provider’s Services via the Platform. You agree that you will not, and will not attempt to: (a) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (b) use the Site or the Platform to violate any local, state, national or international law of any kind, criminal or civil; (c) reverse engineer, disassemble, decompile, or translate any software or other components of the Site or the Platform; (d) distribute viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware, or other harmful software or computer code through the Site, (e) communicate any harmful, offensive, threatening, abusive, libelous, harassing, defamatory, vulgar, obscene, profane, hateful, fraudulent, sexually explicit or pornographic, or otherwise objectionable material of any sort, or (f) otherwise use the Site or the Platform in any manner that exceeds the scope of use granted above. In addition, you agree to refrain from abusive language when communicating with Treating Providers through the Site. SkyMD is not responsible for any interactions with Treating Providers that are not conducted through the Site.

Fees and Purchase Terms

You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. By providing SkyMD with your credit card number and associated payment information, you agree that SkyMD is authorized to immediately invoice your account for all fees and charges due and payable to SkyMD hereunder and that no additional notice or consent is required. If your health plan, employer or agency has arranged with SkyMD to pay the fee or any portion of the fee, or if the fee is pursuant to some other arrangement with SkyMD, that fee adjustment will be reflected in the fee that you are ultimately charged. Please check with your employer, health plan or agency to determine if any Services will be reimbursed. If you do not have insurance coverage for Services, or if your coverage is denied, you acknowledge and agree that you shall be personally responsible for all incurred expenses.

SkyMD offers no guarantee that you shall receive any such reimbursement. SkyMD reserves the right to modify or implement a new pricing structure at any time prior to billing you for your initial payment or for future payments due pursuant to these Terms of Use.

Website Links

WE WILL NOT BE LIABLE FOR ANY INFORMATION, SOFTWARE, OR LINKS FOUND AT ANY OTHER WEBSITE, INTERNET LOCATION, OR SOURCE OF INFORMATION, NOR FOR YOUR USE OF SUCH INFORMATION, SOFTWARE OR LINKS, NOR FOR THE ACTS OR OMISSIONS OF ANY SUCH WEBSITES OR THEIR RESPECTIVE OPERATORS.

Ownership of Content and Trademarks

The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. These Terms of Use permit you to use the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site except as generally and ordinarily permitted through the Site according to these Terms of Use. You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site.

Certain of the names, logos, and other materials displayed on the Site or in the Platform may constitute trademarks, trade names, service marks or logos (“Marks”) of SkyMD or other entities. You are not authorized to use any such Marks without the express written permission of SkyMD. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.

Termination

You may deactivate your Account and end your registration at any time, for any reason by sending an email to support@skymd.com. SkyMD may suspend or terminate your use of the Site, access to the Platform, Account, and/or registration for any reason at any time. Subject to applicable law, SkyMD reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Site pursuant to its internal record retention and/or content destruction policies. After such termination, SkyMD will have no further obligation to provide you access to the Platform, except to the extent we are obligated to provide you access to your health records or Treating Providers are required to provide you with continuing care under their applicable legal, ethical and professional obligations to you.

Right to modify

We may at our sole discretion change, add, or delete portions of these Terms of Use at any time on a going-forward basis. Continued use of the Site and/or the Platform following notice of any such changes will indicate your acknowledgement of such changes and agreement to be bound by the revised Terms of Use, inclusive of such changes.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT USE OF THE SITE AND THE PLATFORM IS AT YOUR SOLE RISK. BOTH THE SITE AND THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SKYMD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION.

You acknowledge and agree that SkyMD does not provide medical advice, diagnosis, or treatment, and is strictly an online technology platform and infrastructure for connecting patients with independent third-party Treating Providers, including physicians and other Treating Providers in the SkyMD network. You acknowledge and agree that the Treating Providers using the Platform are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed, and that all diagnoses, treatments, procedures, and other professional health care services will be provided and performed exclusively by or under the supervision of Treating Providers, in their sole discretion, as they deem appropriate.

LIMITATION OF LIABILITY

YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SKYMD OR ITS OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE OR THE PLATFORM, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

Indemnification

You agree to indemnify, defend and hold SkyMD, its officers, directors, employees, agents, subsidiaries, affiliates, licensors, and suppliers, harmless from and against any claim, actions, demands, liabilities and settlements, including without limitation reasonable legal and accounting fees (“Claims”), resulting from, or alleged to result from, your violation of these terms and conditions. In addition, you agree to indemnify, defend and hold harmless your Treating Provider(s) from and against any third party Claims resulting from your lack of adherence with the advice or recommendation(s) of such Treating Provider.

Geographical Restrictions

SkyMD makes no representation that all products, services and/or material described on the Site, or the Platform available through the Site, are appropriate or available for use in locations outside the United States or all territories within the United States.

Miscellaneous

These Terms of Use and your use of the Site shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. Any dispute arising under or relating in any way to these Terms of Use will be resolved exclusively by final and binding arbitration in San Diego County, California under the rules of the American Arbitration Association, except that either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Diego County, California, for any action related to these Terms of Use.

You understand that by checking the “agree” box for these Terms of Use and/or any other forms presented to you on the Site, you are agreeing to these Terms of Use and that such action constitutes a legal signature. You agree that we may send to you any privacy or other notices, disclosures, or communications regarding the Platform (collectively, “Communications”) through electronic means including but not limited to: (1) by e-mail, using the address that you provided to us during registration, or (2) by posting the Communications on the Site. The delivery of any Communications from us is effective when sent by us, regardless of whether you read the Communication when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Communications by email by canceling or discontinuing your use of the Service.

No waiver by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

SkyMD devotes considerable effort to optimizing signal strength and diagnosis deficiencies but is not responsible for the internet or data bandwidth and signal of your mobile device.

These Terms of Use, the Privacy Policy, and the Notice of Privacy Practices constitute the complete agreement between you and us with respect to their subject matter and supersede any prior agreement or communication. Such agreement is solely for your and our benefit, and is not for the benefit of any other person, except for our successors and assigns. We may assign, transfer, or otherwise dispose our rights and obligations under this agreement, at any time without notice. You may not assign this agreement or transfer any rights to use the Site and the Platform.

Please report any violations of these Terms of Use to support@skymd.com.