Last revised March 27, 2021
1. Privacy Practices
Please Note the Following Information Concerning BetterNight’s
Research Use of User Information.
Research Use: BetterNight collects User Information (as hereinafter defined) in order to provide and improve Services and Products that you purchase using the BetterNight site or we provide to others. BetterNight may use aspects of User Information in research so as to improve its Service, Products and Information. Prior to such research use, BetterNight will de-identify User Information. “De-identification” is a process of detecting identifiers (e.g., personal names and social security numbers) that directly or indirectly point to a person (or entity) and deleting those identifiers from the data. Health information containing personal identifiers that are linked to You (and part of Userfyo Information) is defined as protected health information (“Protected Health Information” or “PHI”) and is protected under the federal and state law. Only User Information that is de-identified (“Your De-Identified Information”) shall be used in BetterNight’s research as described in this paragraph. You acknowledge and agree that BetterNight shall have a royalty-free, irrevocable, worldwide, non-exclusive right and license to use Your De-identified Information to copy, modify, adapt, translate, create derivative works, improve the quality of our service and products, develop or create new services or products and/or incorporate Your De-Identified Information into any form, medium or technology now known or later developed throughout the world without compensation.
2. Services Provided – No Medical Care or Advice by BetterNight
We offer an online communication platform for Providers and their patients to connect via the BetterNight site through the use of synchronous and asynchronous telecommunications technologies. The BetterNight site facilitates communication between patients and Providers.
The BetterNight site does not provide medical advice or care. BetterNight contracts with Better Night Provider Group, an independent, physician-owned medical group with a network of United States based Providers who provide clinical telehealth services. Better Night Provider Group Providers deliver clinical services via the BetterNight platform to their patients. Providers are independently contracted or employed by Better Night Provider Group. Providers are not contracted or employed by BetterNight. The Providers, and not BetterNight, are responsible for the quality and appropriateness of the care they render to you.
The Providers are independent of BetterNight and are merely using the BetterNight site as a way to communicate with you. Any information or advice received from a Provider comes from them alone, and not from BetterNight. Your interactions with the Providers via the BetterNight site are not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Neither BetterNight, nor any of its subsidiaries or affiliates or any third party who may promote the BetterNight site or Service or provide a link to the Service, shall be liable for any professional advice obtained from a Provider via the BetterNight site or Service, nor any information obtained on the BetterNight site. BetterNight does not recommend or endorse any specific Providers, tests, physicians, medications, products, or procedures. You acknowledge that your reliance on any Providers or information delivered by the Providers via the BetterNight site or Service is solely at your own risk and you assume full responsibility for all risks associated herewith.
BetterNight does not make any representations or warranties about the training or skill of any Providers who deliver services via the BetterNight site or Service. You will be provided with available Providers based solely on the information you submit to the BetterNight site. You are ultimately responsible for choosing your particular Provider.
The content of the BetterNight site and the Services, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by BetterNight. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by BetterNight, or in connection with any communications supported by BetterNight is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While BetterNight facilitates your selection of, and communications with, Providers, the BetterNight site does not provide medical services, and the doctor-patient relationship is between you and the Better Night Provider Group Provider you select.
3. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
BetterNight’s Site and Services are not for medical emergencies or urgent situations. You should not disregard or delay seeking medical advice based on anything that appears or does not appear on the BetterNight site. If you believe you have an emergency, call 9-1-1 immediately.
You should seek emergency help or follow up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
4. Risks of Telehealth Services
By using the Services, you acknowledge the potential risks associated with telehealth services. These include but are not limited to the following: information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical or health care decision making by the Provider; delays in evaluation or treatment could occur due to failures of electronic equipment; a lack of access to your medical records may result in adverse drug interactions or allergic reactions or other judgment errors; although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail causing a breach of privacy of your health information.
5. Physician Telemedicine Cancellation Policy
You should receive a reminder about your telemedicine appointment. You must cancel or reschedule your appointment more than twenty-four (24) hours prior to the appointment start time. If you fail to show up for a scheduled consult or to cancel in a timely manner, you will be charged $25.00.
6. Prescription Policy
Neither BetterNight nor Better Night Provider Group endorse any specific medication, pharmacy, pharmacologic product, medical device, or device supplier. If a Provider prescribes a medication, he/she will limit supply based upon state regulations and will only prescribe a medication as determined in his/her own discretion and professional judgment. There is no guarantee a prescription will be written. Providers do not prescribe DEA controlled substances or scheduled medications, or certain other drugs which may be harmful because of their potential for abuse. Providers reserve the right to deny care for actual or potential misuse of the Services.
You agree that any prescriptions that you acquire from a Provider will be solely for your personal use. You agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if you have any questions regarding the prescription. BetterNight and Better Night Provider Group fully honor patient freedom of choice and, if you receive a prescription for a medication, you always have the option to instruct Better Night Provider Group to transmit that prescription to the pharmacy of your choice.
7. Not an Insurance Product
Neither BetterNight nor Better Night Provider Group are insurers. The Services are not insurance products, and the amounts you pay to BetterNight or Better Night Provider Group are not insurance premiums. If you desire any type of health or other insurance, you will need to purchase such insurance separately.
8. Acceptance of Services
I understand that by signing the agreement, I authorize provision of products and/or services to me by BetterNight Provider Group. I also understand that the products and services provided are prescribed by my physician and that it is necessary that I remain under the supervision of my attending physician during the course of my care.
9. Release of Information
I hereby authorize release to BetterNight Provider Group any and all of my medical records pertaining to my medical history, services rendered, or treatments received from my physician(s) or hospital. In order to process insurance claims, I also hereby authorize BetterNight Provider Group to furnish to my insurance carrier(s) any medical history, services rendered, or treatment needed.
10. Assignment of Benefits
I authorize direct payment of insurance benefits by my insurance company to BetterNight Provider Group for all medical supplies and services provided by BetterNight Provider Group. In the event that my insurance carrier does not accept “assignment of benefits”, I understand that payments may be sent directly to me, and that I am obligated to endorse and directly send such payments to BetterNight Provider Group for payment of my bill. I authorize any holder of medical information about me to be released to BetterNight Provider Group, my physician, or my insurance company in order to determine or secure eligibility information and/or reimbursement for covered services.
11. Financial Responsibility
I understand that I am responsible to BetterNight Provider Group for all charges not covered by my insurance. I recognize that in the event that my insurance company, employer, or any other third party payer refuses to pay the rental and/or purchase price(s) of the above items, or delays payment beyond 90 days of my receipt of items, or in the event that I have no insurance coverage or third party payer, that I will be responsible for said payments and will make prompt reimbursement within 30 days of notification by BetterNight Provider Group for all charges. I understand that my equipment will be converted to purchase per my insurance provider’s timeline. When the equipment is converted to purchase, the ownership of the equipment will be transferred to me, the beneficiary. Upon ownership, it is then my, the beneficiary’s responsibility to arrange for any required equipment service or repair. When paying through insurance, the price quotes are estimates only. It is based on the information your insurance provider has given us. Estimated cost does not account for future accumulations on your insurance, such as deductible or out of pocket maximum. Any changes to insurance must be reported to BetterNight for coverage update.
12. Availability of Services
BetterNight and Better Night Provider Group operate subject to state and federal regulations, and the Services may not be available in your state. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the BetterNight site and/or the Services is limited exclusively to users located in States within the United States where the Services are available. Services are not available to users located outside the United States. Accessing the BetterNight site or Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
13. Ordering and Purchasing or Products
Order Acceptance and Shipment
Your placement of an order does not necessarily ensure that we will accept your order. We may require additional information regarding your order if you have not provided all the information required by us to completed. Once a properly completed order and authorization of your form of payment is received, we will process your order and Product for shipment. If, for some reason, we determined that we cannot ship your Product(s) within thirty (30) days following our receipt of a properly completed order, we will cancel your order and advise you of such action. We do not accept orders from dealers, wholesalers or other customers who intend to resell items offered on our BetterNight site.
Typographical Errors and Incorrect Pricing
In the event a Product or Service is listed at an incorrect price due to typographical error or error in pricing information received from a third party, we shall have the right to refuse or cancel any orders placed for the Product(s) and/or Service(s) listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your credit or debit card account in the amount of the charge.
Risk of Loss
All Products purchased from our BetterNight site are delivered to shipment carriers. The risk of loss and title for such Products pass to you when they are delivered to the carrier.
Diagnostic Equipment Return Policy
In order to provide the very best patient care and customer service, we need to ensure that diagnostic equipment is returned on time and in good condition. Late fees will be assessed if the equipment is not returned within the timeframes specified below. Patients may be held responsible for excessive damage to the recorder or sensors. Late fees will be charged at the following rates:
1-6 days after due date: $25.00 / day
7-13 days after due date: $75.00 / day
14+ days after due date: $3,500.00
You may return durable medical equipment products in accordance with our Returns Policy. Most unopened items sold by BetterNight Provider Group in new condition and returned within 90 days will receive a refund or exchange. Some items sold by BetterNight Provider Group have a modified return policy noted on the receipt or packing slip. Items that are opened or damaged or do not have a receipt may be denied a refund or exchange.
Every PAP device sold carries a 2-year manufacturer’s warranty. BetterNight will honor all warranties under applicable law. In addition, an owner’s manual with warranty information will be provided for all durable medical equipment where this manual is available.
14. Eligibility; BetterNight site Access, Security and Restrictions; Passwords
In order to access the BetterNight site and the Services, you represent and warrant that you are older than 18 years old. You agree to fully, accurately, and truthfully create your BetterNight Account (“Account”), including but not limited to your name, mailing address, phone number, email address, and password, which become your BetterNight ID and credentials. The BetterNight ID and/or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your BetterNight ID and/or credentials, and for all activities that occur under such BetterNight ID and/or credentials. You agree to prohibit anyone else from using your BetterNight ID and/or credentials and agree to immediately notify BetterNight of any actual or suspected unauthorized use of your BetterNight ID and/or credentials or other security concerns of which you become aware. Your access to the BetterNight site may be revoked by BetterNight at any time with or without cause.
You may not use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the BetterNight site, deep-link to any feature or content on the BetterNight site, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the BetterNight site. Violations of system or network security may result in civil or criminal liability. BetterNight will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this BetterNight site or any activity being conducted on this BetterNight site.
15. Electronic Communications
When you use the BetterNight site or Services, or send e-mails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. BetterNight and Better Night Provider Group may contact you by telephone, mail, or email to verify your account information. BetterNight and Better Night Provider Group may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the BetterNight site and the Services until you provide the information to us as requested.
16. Consent to Receive Calls and Text Messages
By providing your mobile number, you are agreeing to be contacted by or on behalf of BetterNight and Better Night Provider Group at the mobile number you have provided, including calls and text messages, to receive informational, Product or Service related (e.g., progress tracking, refill reminders, checkup reminders, etc.) and marketing communications relating to the BetterNight site and Services. Message and data rates may apply. To stop receiving text messages text the word STOP. We may confirm your opt out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the service that most recently sent you a message and/or respond to your STOP message by texting you a request to identify services you wish to stop. Keep in mind that if you stop receiving text messages from us you may not receive important and helpful information and reminders about your progress and treatment.
17. Ownership Of The BetterNight site And Related Materials; Additional Restrictions
All pages within this BetterNight site and any material made available for download are the property of BetterNight, or its licensors or suppliers, as applicable. The BetterNight site is protected by United States and international copyright and trademark laws.
18. No Users Under 18 Years Old
The BetterNight site and Services are only for users of the age of 18. If you are under the age of 18, do not attempt to register with us at this BetterNight site or provide any personal information about yourself to us. If we learn that we have collected personal information from someone under the age of 18, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18, please call us at (866) 801-9440.
19. Accuracy of Information; Functionality
Although BetterNight attempts to ensure the integrity and accurateness of the BetterNight site and Product descriptions, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the BetterNight site, Product descriptions and other content on the BetterNight site. It is possible that the BetterNight site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the BetterNight site by third parties. In the event that an inaccuracy arises, please inform BetterNight so that it can be corrected. If a Product described on our BetterNight site is not as described when you receive it, or the packaging on the BetterNight site does not match the product to receive, your sole remedy is to return it to us in unused and undamaged condition. Information contained on the BetterNight site may be changed or updated without notice. Additionally, BetterNight shall have no responsibility or liability for information or content posted to the BetterNight site from any non-BetterNight affiliated third party.
BetterNight and Better Night Provider Group each reserves complete and sole discretion with respect to the operation of the BetterNight site and the Services. We may withdraw, suspend, or discontinue any functionality or feature of the BetterNight site or the Services among other things. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the BetterNight site or with respect to the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the BetterNight site or the Services in accordance with our internal record retention and/or destruction policies.
20. Links to Other Sites
BetterNight makes no representations whatsoever about any other website that you may access through this BetterNight site. When you access a non-BetterNight site, please understand that it is independent from BetterNight, and that BetterNight has no control over the content on that website. In addition, a link to a non-BetterNight website does not mean that BetterNight endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this BetterNight site, you do this entirely at your own risk.
21. User Information
If you submit, upload, post or transmit any health information, medical history, conditions, problems, symptoms, personal information, consent forms, agreements, requests, comments, ideas, suggestions, information, files, videos, images or other materials to us or our BetterNight site (“User Information”), you agree not to provide any User Information that (1) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other BetterNight site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to BetterNight and Better Night Provider Group that you have the legal right and authorization to provide all User Information to BetterNight and Better Night Provider Group for use as set forth herein and required by BetterNight and the Better Night Provider Group Provider.
You agree not to (i) access the BetterNight site or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (a) a message under a false name, or (b) any data, materials, content, or information (including, without limitation, advice, and recommendations) (collectively “Information”) which is (1) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (2) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the BetterNight site or the Services, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the BetterNight site or the Services; (v) use robots or scripts with the BetterNight site; (vi) attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this BetterNight site; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to BetterNight. You may not alter the attribution or origin of electronic mail, messages, or posting; (ix) harvest or collect Protected Health Information about any other individual who uses the BetterNight site or the Services; (x) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties.
You agree to defend, indemnify and hold harmless BetterNight, Better Night Provider Group, and the Providers from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by us arising out of any User Information you upload to or transmit through the BetterNight site.
22. Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on our BetterNight site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
BetterNight respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to notices of alleged infringement that are reported to BetterNight’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the BetterNight site
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our BetterNight site by sending us a notice (“Notice”) complying with the following requirements.
Identify the copyrighted works that you claim have been infringed.
Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the BetterNight site where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent:
Better Night Services
Attn: VP of Marketing
5471 Kearny Villa Road, Suite 200
San Diego, CA 92123
23. Intellectual Property
With the exception of your electronic medical record, BetterNight and Better Night Provider Group, as applicable, retain all right, title, and interest in and to the BetterNight site, the Services and any information, products, documentation, software, or other materials on the BetterNight site, and any patent, copyright, trade secret, idea or discovery, whether patentable or not, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the BetterNight site licensed by BetterNight or Better Night Provider Group (in that case, the license provider retains all right, title, and interest therein). The foregoing shall be referred to in this Agreement collectively as the “IP.” For clarity, the IP set forth above is not an exclusive account of IP owned by BetterNight or its license providers. You expressly agree not to commercialize any such IP, whether obtained directly or indirectly through the use of the BetterNight site, receipt of Services, or in any other manner (by You or a third party), without the prior written agreement of BetterNight or its license providers, each with respect to their IP. You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such IP to anyone. Use, reproduction, copying, or redistribution of BetterNight or Better Night Provider Group trademarks, service marks, and logos are strictly prohibited without the prior written permission of BetterNight or Better Night Provider Group, as applicable. The immediately foregoing sentence also applies to any third party trademarks, service marks, and logos posted on the BetterNight site. Nothing contained on the BetterNight site should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademarks, service marks or logos displayed on the BetterNight site without the written grant thereof by BetterNight, Better Night Provider Group or the third party owner of such trademarks, service marks, and/or logos. The BetterNight site may contain other proprietary notices and copyright information, the terms of which you agree to follow.
BetterNight may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
24. Disclaimer of Warranties
BetterNight does not warrant that access to or use of the BetterNight site will be uninterrupted or error-free or that defects in the BetterNight site will be corrected. This BetterNight site, including any content or information contained within it or any site-related service, is provided “as is,” with all faults, with no representations or warranties of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, quality of information, quiet enjoyment, and title/non-infringement. BetterNight does not warrant the accuracy, completeness or timeliness of the information obtained through the BetterNight site.
You assume total responsibility and risk for your use of this BetterNight site, site-related services, and linked websites. BetterNight does not warrant that files available for download will be free of viruses, worms, trojan horses or other destructive programming. You are responsible for implementing procedures sufficient to satisfy your needs for data back up and security.
Warranties relating to products or services offered, sold and distributed by BetterNight are subject to separate warranty terms and conditions, if any, provided by BetterNight or third parties with or in connection with the applicable products or services.
25. Limitation of Liability Regarding Use of BetterNight site
Except as provided by law, and without limitation:
BetterNight shall not be liable for the acts or omissions of the BetterNight Provider Group or the Providers. BetterNight and any third parties mentioned on this BetterNight site are neither responsible nor liable for any direct, indirect, incidental, consequential, special, exemplary, punitive, or other damages whatsoever (including, without limitation, those resulting from lost profits, lost data, or business interruption) arising out of or relating in any way to the BetterNight site, site-related services, content or information contained within the BetterNight site, and/or any linked website, whether based on warranty, contract, tort, or any other legal theory and whether or not advised of the possibility of such damages. Your sole remedy for dissatisfaction with the BetterNight site, site-related services, and/or linked websites is to stop using the BetterNight site and/or those services. To the extent any aspects of the foregoing limitations of liability are not enforceable, the maximum liability of BetterNight to you with respect to your use of this BetterNight site is $500 (five hundred dollars). You hereby agree to waive, to the fullest extent permitted by law, all laws that limit the efficacy of such indemnifications or releases.
26. No Third Party Rights
28. Supplemental Terms Applicable to Providers
To be a healthcare provider using the BetterNight site (“Provider” or “you”) you must be a licensed physician, nurse practitioner, or healthcare professional contracted or employed by Better Night Provider Group, and must agree to comply with all laws, medical board rules and other rules and regulations applicable to you as a Provider or otherwise. Your relationship with the BetterNight users (including your Better Night Provider Group patients) is directly between you and the patient. The patient will never have a physician-patient relationship with BetterNight. BetterNight does not practice medicine and offers no medical services. As set forth more fully below, Provider is solely responsible for all agreements, consents, notices and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Provider and Better Night Provider Group is solely responsible for all billings and collections from patients and other consumers, and BetterNight shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider.
The BetterNight site does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Provider, goods or services offered by Provider, including but not limited any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Provider’s compliance obligations under law. Provider and BetterNight agree that BetterNight is not providing, to patient or anyone else, medical advice or legal advice.
Provider will use the BetterNight site and Services only in accordance with applicable standards of good medical practice. While software products such as the BetterNight site and Services can facilitate and improve the quality of service that Provider can offer patients, many factors, including the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. Provider shall be solely responsible for its use of the BetterNight site and Services, and the provision of medical services to Provider’s patients. In this regard, Provider releases BetterNight and waives any and all potential claims against BetterNight as a result of Provider’s use of the BetterNight site and Services, and the provision of services to Provider’s patients.
As a result of the complexities and uncertainties inherent in the patient care process, Provider agrees to defend, indemnify and hold BetterNight harmless from any claim by or on behalf of any patient of Provider, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a patient, which is brought against BetterNight, regardless of the cause if such claim arises for any reason whatsoever, out of Provider’s use or operation of the BetterNight site and Services. To the extent applicable, Provider will obtain BetterNight’s prior written consent to any settlement or judgment in which Provider agrees to any finding of fault of BetterNight or defect in the BetterNight site or Services. BetterNight will promptly notify Provider in writing of any claim subject to this indemnification, promptly provide Provider with the information reasonably required for the defense of the same, and grant to Provider exclusive control over its defense and settlement.
If you submit, upload, transmit, or post any consents, notices, advice, recommendations, comments, files, videos, images or other materials to us or our BetterNight site (“Provider Content”) or provide any Provider Content to patients or other consumers, you agree not to provide any Provider Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. Provider is solely responsible for obtaining all necessary agreements and consents from, and providing all required notices to, patients and other consumers. You agree not to contact other users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to BetterNight that you have the legal right and authorization to upload all Provider Content at the BetterNight site. BetterNight shall have a royalty-free, irrevocable, transferable right and license to use the Provider Content however BetterNight desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such Provider Content and/or incorporate such Provider Content into any form, medium or technology throughout the world. BetterNight is and shall be under no obligation (1) to maintain any Provider Content in confidence; (2) to pay to you any compensation for any Provider Content; or (3) to respond to any Provider Content.
BetterNight does not regularly review Provider Content, but does reserve the right (but not the obligation) to monitor and edit or remove any Provider Content submitted to the BetterNight site. You grant BetterNight the right to use the name that you submit in connection with any Provider Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Provider Content. You are and shall remain solely responsible for the content of any Provider Content you post to the BetterNight site or provide to patients or other consumers. BetterNight and its affiliates take no responsibility and assume no liability for any Provider Content submitted by you or any third party.
29. Dispute Resolution; Arbitration Agreement
We will try to work in good faith to resolve any issue you have with the BetterNight site, including Products and Services ordered or purchased through the BetterNight 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 BETTERNIGHT 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 BetterNight 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.
30. Force Majeure
32. Revisions; General
Copyright ©2021 Better Night Services All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the BetterNight 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.
How to Contact Us:
5471 Kearny Villa Road, Suite 200
San Diego, CA 92123
2. INFORMATION THAT WE COLLECT
Information You Provide to Us
We collect information you provide to us, for example when you create or modify your account, register to use our BetterNight site, purchase products or services from us, request information from us, contact customer support, or otherwise communicate with us. This information may include:
Information We Collect Automatically Through Your Use of our BetterNight site
We use Google Analytics, a web analytics service provided by Google, Inc. (“Google”) to collect certain information relating to your use of the BetterNight site. Google Analytics uses “cookies”, which are text files placed on your computer, to help the BetterNight site analyze how users use the BetterNight site. You can find out more about how Google uses data when you visit our BetterNight site by visiting “How Google uses data when you use our partners' sites or apps”, (located at www.google.com/policies/privacy/partners/). For more information regarding Google Analytics please visit Google's website, and pages that describe Google Analytics, such as www.google.com/analytics/learn/privacy.html.
Information Collected Through Cookies and Similar Technologies
No Information from Children Under Age 18
If you are under the age of 18, please do not attempt to register with us at this BetterNight site or provide any personal information about yourself to us. If we learn that we have collected personal information from a child under the age of 18, we will promptly delete that information. If you believe we have collected personal information from a child under the age of 18, please call us at (866) 801-9440.
To Provide and Improve Products, Services, and Information. We collect User Information and other information from you in order to provide and improve products and services that you purchase using the BetterNight site or we provide to others; register and service your online account; provide information that you request from us; contact you about your orders; process credit card and debit card transactions; ship products to you; send you promotional materials or advertisements about our products and services, as well as new features and offerings; and, administer surveys, sweepstakes, promotions and contests.
Research Use: BetterNight may use aspects of User Information in research so as to improve its Service, Products and Information. Prior to such research use, BetterNight will de-identify User Information. “De-identification” is a process of detecting identifiers (e.g., personal names and social security numbers) that directly or indirectly point to a person (or entity) and deleting those identifiers from the data. Health information containing personal identifiers that are linked to You (and part of User Information) is defined as protected health information (“Protected Health Information” or “PHI”) and is protected under the federal and state law. Only User Information that is de-identified (“Your De-Identified Information”) shall be used in BetterNight’s research as described in this paragraph. You acknowledge and agree that BetterNight shall have a royalty-free, irrevocable, worldwide, non-exclusive right and license to use Your De-identified Information to copy, modify, adapt, translate, create derivative works, improve the quality of our services and products, develop or create new services or products and/or incorporate Your De-Identified Information into any form, medium or technology now known or later developed throughout the world without compensation.
Sharing with Third Parties. We may provide User Information to our affiliates and certain third party service providers that help us operate and manage our BetterNight site, process orders, and fulfill and deliver products and services that you purchase from us. These affiliates and service providers will have access to your personal information in order to provide these services, but when this occurs we implement reasonable contractual and technical protections to limit their use of that information to helping us provide the service.
Your Consent. In addition to the sharing described elsewhere in this Policy, we will share personal information with companies, organizations or individuals outside of BetterNight and Better Night Provider Group when we have your consent to do so.
Legal Proceedings. We will share personal information with third party companies, organizations or individuals outside of BetterNight if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:
4. ACCESS TO YOUR INFORMATION AND CHOICES
You can access and update certain information we have relating to your online account by signing into your account and going to the Account Settings section of our BetterNight site. If you have questions about personal information we have about you or need to update your information, you can call us at (866) 801-9440. You can opt-out of receiving marketing and promotional emails from BetterNight and Better Night Provider Group by using the opt-out or unsubscribe feature contained in the emails.
You can close your online account by going to the Account Settings section of our BetterNight site. If you close your account, we will no longer use your online account information or share it with third parties. We may, however, retain a copy of the information for archival purposes, and to avoid identity theft or fraud.
5. SECURITY OF YOUR INFORMATION
We use industry standard physical, technical and administrative security measures and safeguards to protect the confidentiality and security of your personal information. However, since the Internet is not a 100% secure environment, we cannot guarantee, ensure, or warrant the security of any information you transmit to us. There is no guarantee that information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. It is your responsibility to protect the security of your login information. Please note that emails and other communications you send to us through our BetterNight site are not encrypted, and we strongly advise you not to communicate any confidential information through these means.
6. CONSENT TO PROCESSING OF PERSONAL DATA IN UNITED STATES
If you are a resident of the European Economic Area (EEA) or other jurisdiction outside of the U.S., in order to provide our BetterNight site, products and services to you, we may send and store your personal information (also commonly referred to as personal data) outside of the EEA, including to the United States. Accordingly, your personal information may be transferred outside of the country where you reside or are located, including to countries that may not or do not provide the same level of protection for your personal information. We are committed to protecting the privacy and confidentiality of personal information when it is transferred. Where such transfers occur, we take appropriate steps to provide the same level of protection for the processing carried out in any such countries as within the EEA to the extent feasible under applicable law. By using and accessing our BetterNight site, users who reside or are located in countries outside of the United States agree and consent to the transfer to and processing of personal information on servers located outside of the country where they reside, and that the protection of such information may be different than required under the laws of their residence or location.
8. QUESTIONS AND HOW TO CONTACT US
Better Night Services
5471 Kearny Villa Road, Suite 200
San Diego, CA 92123
Effective April 14, 2003
The privacy of your Protected Health Information is important to us. Please review this notice carefully, as it describes how your medical information is used and maintained by our organization and by our offices and work staff. It also describes your rights as to the information and how you can get access to it.
PLEASE CONTACT OUR PRIVACY OFFICER (contact information below) WITH ANY QUESTIONS THAT YOU MAY HAVE REGARDING THIS NOTICE. WE URGE YOU TO REVIEW THIS NOTICE CAREFULLY AND ASK ANY QUESTIONS THAT YOU MAY HAVE ABOUT THE USE OR SHARING OF YOUR PROTECTED HEALTH INFORMATION.
Your Protected Health Information (PHI)
Whenever you receive or request durable medical equipment or services from our organization through a prescription, we receive and create personal medical information about you, and about the equipment or services you receive or request. We need this information in order to provide equipment or services to you and to comply with certain legal requirements. It is our goal to make sure that the personal medical information we receive or create about you is kept strictly private. It is necessary, however, to use it or share this information with others from time to time, but only under proper circumstances. This Notice describes how we may properly use and share your medical information, which we refer to as “protected health information” or “PHI”. This Notice also describes your rights to access and control your PHI. In reviewing this Notice, it may appear that your medical information is used or shared in many ways. But, this is a comprehensive list and certain events may never occur or might happen only once or a few times. For the most part, your medical information is used or shared only in connection with the equipment or services that we provide you. We have an obligation to make sure that we give you a copy of this Notice and follow its terms. This Notice applies to PHI generated at each of our offices. When we refer to “we” or “us” in this Notice, we mean our organization and our staff, and also refer to each of our offices, and the technicians and other work force staff who contribute to your care. We will provide you with a list of the persons and locations covered by this Notice upon your request.
TYPICAL USES & SHARING
Your protected health information may be used or disclosed for these typical situations, without your prior authorization
Treatment: We will use and disclose your protected health information in order to provide durable medical equipment and services or to assist physicians or other health care providers assess you medical condition or treat you. We may disclose your protected health information to your primary care or family physician, to a Pacific Sleep Medicine physician, to a specialist, or to another clinic, physician, hospital or other health care provider who requests this information in connection with your care and treatment. Your shared protected health information may include information that we receive from Pacific Sleep Medicine or from other physicians or health care providers. For example, we may have receive and maintain an order from your physician and sleep study test results, which we may need in order to determine the durable medical equipment and services that you require. We may in turn disclose information regarding your durable medical equipment and services and other protected health information in our possession to your personal physician or other health care provider who is treating you.
Payment: We may use and disclose your protected health information in order to obtain payment for our services or to allow insurance companies, health plans, government agencies and managed care companies to process claims for services rendered by us to you. For example, we may need to give your health plan information about your health condition in order to obtain authorization for you to receive durable medical equipment or services.
Health Care Operations: We will use and disclose your protected health information in order to evaluate the quality and appropriateness of care provided by our physicians and health care professionals. We may need to use and disclose protected health information in connection with our licensing, payment certification, and other status. We may use and disclose your protected health information in our organization’s day-to-day operations to enable it to operate smoothly, efficiently and in compliance with applicable laws. As examples, your protected health information may be used for routine activities such as calling you to remind you of a scheduled test. We may also consider your information in planning, as well as use your information to assist in training.
Employer/Plan Sponsors: We may disclose your protected health information to your employer or other group health plan sponsor in connection with administration of the health plan and/or payment for services. Information to your employer that falls outside of these purposes may require your prior written authorization.
Healthcare Information: We may use your protected health information to contact you from time to time with information about services that we offer, to coordinate your care with other health care providers, or with treatment alternatives. If you do not wish to receive this type of information, you may opt out of receiving this information by contacting the Privacy Officer in writing. However, even if you elect not to receive this information, you may still continue to receive information made available to patients generally, such as newsletters or updates.
You, Family and Close Friends: We may disclose your protected health information to you, unless there is information in your file that we are not legally authorized to release to you, such as information related to psychotherapy. We may also disclose information to a family member, friend or other person if you are incapacitated such as in a medical emergency or disaster relief. We will disclose this information only to the extent necessary to help with your health care or with payment for your health care.
Public Health and Safety; Research: We may use and disclose your protected health information to the extent necessary to avert a serious and imminent threat to your health or safety or the health or safety of others. We may use or disclose your protected health information for limited research purposes.
Outside Service: We may also need to share your protected health information with outside individuals or companies that perform services for us. For example, if we use a vendor or contractor to perform such things as billing or practice management, they may need access to your protected health information. We ask that any outside service or vendor safeguard the privacy of your protected health information in their possession. We do not intend to share your information with any outside service that does not need your information to do its job, such as maintenance crews.
Research Use: As set forth in Section 3 above, BetterNight may use aspects of User Information in research so as to improve its Services, Products and Information. Provided, however, BetterNight will de-identify User Information, including your PHI prior to any such research as described above.
Unintended Disclosure: We will try our best to prevent this, but it is possible that others may learn of protected health information because they hear or see information that is not meant for them. For example, another patient might overhear a conversation between you and a durable medical equipment or service technician. We use reasonable efforts to try to prevent any such disclosure from occurring.
Authorized Use or Disclosure:
If you specifically authorize us to do so in writing, we will share your protected health information to persons who are not involved with your care and not included in one of the categories listed above. This might include, for example, your employer (for reasons other than related to health plan administration), a life insurance company or a distant relative. Our Privacy Officer or our staff will provide the necessary form for this authorization. You may cancel this authorization at any time.
Among the unusual uses or disclosures that may occur without your prior authorization are the following:
Required by Law: We will use or disclose your protected health information when we are required to do so by law. For example, we would be required to share such information with a government agency in connection with an audit or investigation, or if we are required by law to report a health condition to a federal, state or local agency.
Process and Proceedings: We may disclose your protected health information in response to a court or administrative order, subpoena, discovery request or other lawful process.
Law Enforcement: We may disclose limited information to a law enforcement official concerning the protected health information of a suspect, fugitive, material witness, crime victim or missing person. We may disclose the protected health information of an inmate or other person in lawful custody to a law enforcement official or correctional institution under certain circumstances.
Military and National Security: We may disclose to Military authorities the protected health information of Armed Forces personnel. We may disclose to authorized federal officials protected health information required for lawful intelligence, counterintelligence and other national security activities.
You have rights with respect to your protected health information. If you have any questions about these rights or want to exercise any of these rights, please contact our Privacy Officer (see contact information below), who will assist you. You may have to pay a fee, depending on your request.
Inspect and Copy Your Records: Except for certain mental health information, if any, included in your records, you may inspect and receive a copy of part or all of your protected health information. Your request must be in writing, and we will charge a fee to provide a copy. We also will need a reasonable time to provide the copy, as permitted by law.
Request Restrictions: You may request restrictions on how your protected health information is used or disclosed. You can request, in writing, that we place additional restrictions on the use or disclosure of your protected health information. We are not required to agree to these additional restrictions, but if we elect to do so, we will abide by our agreement (except in an emergency).
Receive Confidential Communications: You can specify how and where we should send protected health information. For example, you may want all such information in writing, rather than left as a voice message. Or you may request that we send all correspondence for you to your work address. We will accommodate reasonable requests.
Amend Your Record: If you feel that health information we have about you is incorrect or incomplete, you may ask us to amend or change the information. However, we might not agree to your request. There are various reasons why we may deny your request for an amendment. If you submit a request for amendment, we will provide you with more information about the process. We will notify you in writing regarding our action on your request.
Log of Unusual Events: You have the right to request a log of unusual events that resulted in our sharing protected health information. We are required to maintain events on this list for six years, starting April 14, 2003. The log will only list those disclosures that you have not authorized, and which were not related to treatment, payment or our operations. This log might include, for example, the sharing of information with the police or with a government agency, which was necessary without your permission.
Copy of This Notice: You may receive, upon request, a paper copy of this notice at any time.
OUR RIGHT TO CHANGE NOTICE
We reserve the right to change this notice. We may modify or change our privacy practices from time to time, particularly as new laws and regulations become effective. Any changes will be effective for all the protected health information that we maintain, even information in existence before the change. If we materially modify our privacy practices, we will provide you with a new notice advising you of these changes when you next obtain services from us.
If you believe that your protected health information was not handled properly or feel that we have not allowed you to exercise your rights, you may file a complaint with the Privacy Officer (see contact information below). All complaints must be submitted in writing. You can also contact Region IX of the Office of Civil Rights of the Department of Health and Human Services, at (415) 437-8310 voice, (415) 437-8329 fax, or at e-mail address OCRComplaint@hhs.gov. We respect your rights and will not retaliate against you or stop your care if you feel it necessary to file a complaint.
5471 Kearny Villa Road, Suite 200 | San Diego, CA 92123
Telephone (619) 299-6299