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Daybreak PCs Patient Agreement

Updated January 23, 2024

This Patient Agreement (this “Agreement”) governs your use of the obstructive sleep apnea diagnosis and treatment services delivered via telehealth (the “Clinical Services”) by Beluga Health PC of New Jersey; Beluga Health, PC; Beluga Health CO, PA; Beluga Health Corp; Beluga Health, PA; (collectively, “Daybreak PCs”, “we” or “us”) affiliated with Sleepcare Now LLC d/b/a Daybreak (“Daybreak”). Please read this Agreement carefully before receiving the Clinical Services.

Daybreak provides management and technology services to Daybreak PCs, and the Terms of Use and Privacy Policy govern your access to and use of the non-clinical services provided by Daybreak. Please read the Terms of Use and Privacy Policy carefully before using Daybreak’s non-clinical services.

By signing this Agreement as either the patient or patient’s legal representative, parent, guardian, conservator, or other person lacking the ability to consent (collectively, “you”), you acknowledge you have read, accepted, and become legally bound to the terms and conditions set forth below.The terms “you” or “your” shall also mean the patient or recipient of Clinical Services.We reference the Daybreak PCs website as the “Site” and the Daybreak PCs telehealth platform as the “Platform” in this Agreement.

DO NOT USE THE CLINICAL SERVICES, INCLUDING TELEHEALTH SERVICES, FOR EMERGENCY OR LIFE-THREATENING MEDICAL MATTERS. FOR ALL LIFE THREATENING MATTERS, IMMEDIATELY CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM.

1. Updates to the Agreement

Daybreak PCs may, in its sole discretion, without prior notice to you, revise this Agreement at any time. Should this Agreement change materially, Daybreak PCs will update the “Last Updated” date noted above and post a notice regarding the updated Agreement. If you do not agree with the proposed changes, you should discontinue your use of the Clinical Services before the effective date of the change. If you continue using the Clinical Services after the Last Updated date, you will be bound by the updated Agreement.

2. Your Financial Responsibility; Assignment of Benefits

You agree to pay Daybreak PCs all applicable charges and payment responsibility at the prices then in effect for the Clinical Services provided to you, and in accordance with the policies set forth in Section 2.1 and Section 2.2 of this Agreement. You will be charged for the Clinical Services provided to you by a Daybreak PCs practitioner. You authorize Daybreak PCs and its agents to charge your chosen payment method (your “Payment Method”) for the Clinical Services provided to you. If your Payment Method is invalid at the time payment is due, you agree to pay all amounts due upon demand. The third-party services provider who manages your Payment Method may impose terms and conditions on you, which are independent of this Agreement, and you agree to comply with all of those terms. Daybreak PCs may accumulate charges that you have incurred for the Clinical Services and submit them as one or more aggregate charges during or at the end of each billing cycle. Daybreak PCs reserves the right to correct any billing errors or mistakes even if payment has already been requested or received.

If you provide information about your health insurance or health plan, that will be deemed your authorization for us to submit claims for covered Clinical Services to your health insurer or health plan. You hereby assign or otherwise authorize payment of medical benefits to Daybreak PCs for the Clinical Services provided to you. You authorize the release of any medical or other information necessary to process any claims for the Clinical Services provided. You further understand and accept your financial responsibility for any portion of the bill not covered by your health insurer or health plan. SUBMISSION OF CHARGES DOES NOT WAIVE OUR RIGHT TO SEEK PAYMENT DIRECTLY FROM YOU.

2.1 Financial Policy

You agree that all payments are due at the time of service, and co-pays not paid at the time of your visit may be subject to an additional charge to your account. Patients who are not using health insurance and are instead paying on a “cash” basis must pay in full at the time of service. Payments may be made online or by phone.

If your check is returned for non-sufficient funds, we will add a service charge to your account. If that happens, you will be asked to pay the amount of the check plus the service charge within ten (10) days of the date that payment was due. If the outstanding liability on your account has not been paid in full by then, it may be referred for collection action. If your insurance plan does not cover a procedure, you agree to sign a waiver agreeing to pay for the visit at the time of service.

You agree to present your insurance card at each visit to ensure that we bill your insurance correctly. If we determine that the charges for the visit will be applied to your deductible, you will be given the opportunity to pay a portion of the charge for the next visit. This payment will be submitted to your health insurance provider. Depending on the Clinical Services provided, there may be a credit or an additional charge to your account.

If you have coverage through a non-contracted insurance plan, you will be billed for the full amount of the services and we will provide you with a coded bill to submit to your health insurance provider. We will also support you in seeking reimbursement, but it is ultimately your responsibility to follow up with your health insurance provider.

If you fail to pay or contact our business office within sixty (60) days after a statement is issued, our collections process on your account will begin. Repeated failure to pay may result in your dismissal from Daybreak PCs and the assignment of your account to a collection agency. In the event ofnon-payment, a rebilling fee/finance charge will be applied to any overdue balance.

2.2 Financial Policy

You acknowledge and understand that, as part of the Clinical Services, you may request certain services, such as the at home sleep test (“AHST”), that may be considered medically necessary by your health insurance provider, but that your health insurance provider may not cover, and you are fully responsible for the out-of-pocket expenses incurred for the AHST. You understand that you have the option to explore other available avenues for treatment that may be covered by your insurance provider and you have chosen to proceed with the recommended AHST services at your own expense.

3. Permission to Treat

You hereby give permission to Daybreak PCs to medically care for you. You may withdraw this consent at any time by no longer seeking Clinical Services from Daybreak PCs. You understand that if you refuse recommended medical care, you will not hold Daybreak PCs, any of its staff or physicians, or any other practitioner (each a “Daybreak PCs Clinician”) responsible for any consequences of your refusal of care.

You understand and agree that as part of providing Clinical Services to you, your protected health information (“PHI”), including test results, may be released to an online personal health record and via communication with Daybreak PCs Clinicians electronically. You further understand and agree that in providing Clinical Services to you, your PHI, payment information, and other information may be shared with contracted dental providers.

4. No Show Policy

You agree provide notice at least twenty-four (24) hours prior to your appointment if you will be unable to attend. If you miss a second appointment without twenty-four (24) hours’ advance notice, a fee of $50 may be charged. A third missed appointment without advanced notice in a twenty four (24) month period, in addition to a fee of $50, can be cause for your dismissal from Daybreak PCs. Failure to keep an initial appointment to establish care is also cause for dismissal from Daybreak PCs.

5. Service Termination

You may terminate your use of the Clinical Services at any time by not using the Clinical Services anymore. We may terminate your use of the Clinical Services at any time in our reasonable discretion, for causes including but not limited illegal conduct such as falsifying information, abusive and threatening behavior, consecutive missed appointments, and continued refusal to pay for our services. In the event that we terminate your use of the Clinical Services, we will send notice to you at the mail or email address you provided to us or by otherwise contacting you.

6. Consent to Electronic Communications

You agree that Daybreak PCs may send the following to you by email or by posting them on our Site or Platform: legal disclosures; this Agreement; future changes to any of the above; and other notices, policies, communications or disclosures and information related to the Clinical Services.

By signing this Agreement, you agree that Daybreak PCs may contact you via (secure) messaging, email, phone, text, or mail regarding the Clinical Services, including electronic communications from Daybreak PCs pertaining to your care and your health, which may include PHI. You understand that communication via email, text messages, and other electronic means selected by Daybreak PCs may not be secure and could be viewed by unintended persons, and you agree to exchange of communications, to and from Daybreak PCs via these electronic means. You agree to update your contact information to ensure accuracy.

If you later decide that you do not want to receive certain future communications electronically, please send an email to support@thedaybreak.com You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from Daybreak PCs. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above.

Daybreak PCs will need to send you certain communications electronically regarding the Clinical Services. You will not be able to opt out of those communications – e.g., communications regarding updates to this Agreement or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Agreement provided to and accepted by, you.

7. Video/Photograph Release

You grant Daybreak and Daybreak PCs the irrevocable right and permission to use photographs and/or video recordings of you and to use and disclose information about you for the purposes of creating photographs or video clips, as well as stand-alone pictures/graphics in which you may appear and/or be heard, for use in internal Daybreak publications and for the purpose of training of Daybreak employees. Daybreak’s use of any photographs or video recordings will be limited to internal websites and publications. Daybreak agrees that any photographs or video clips will not be used on social media or any public media platforms. The purpose of these recordings is for training purposes and for internal use only.

You understand and agree that such photographs and/or video recordings of you may be placed on the internal Daybreak websites. You also understand and agree that you may be identified by name and/or title in such internal printed, websites, or broadcast information that might accompany the photographs and/or video recordings of you. You waive the right to approve the final product. You agree that all such portraits, pictures, photographs, video and audio recordings, and any reproductions thereof, and all plates, negatives, recording tape, and digital files are and shall remain the property of Daybreak.

You hereby release, acquit, and forever discharge Daybreak, its current and former directors, agents, officers and employees of the above-named entity, its affiliates or assigns, from any and all claims, demands, rights, promises, damages, and liabilities arising out of or in connection with the use or distribution of said photographs and/or video recordings, including but not limited to any claims for invasion of privacy, appropriation of likeness, or defamation.

You hereby warrant that you are eighteen (18) years old or more and competent to contract in your own name. This release is binding on you and your heirs, assigns and personal representatives.

8. Disclaimers

TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, EXCEPT IN CASE OF NEGLIGENCE OR WILLFUL MISCONDUCT, WE AND OUR AFFILIATES, DAYBREAK PCS, PARTNER PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF OR INABILITY TO USE THE CLINICAL SERVICES.

The Clinical Services are intended for use only within the United States and its territories. We make no representation that the Clinical Services are appropriate, or are available for use outside the U.S. or outside of the states in which Daybreak PCs operates medical practices. Those who choose to access and use our Clinical Services from outside the U.S. do so on their own initiative, at their own risk, and are responsible for compliance with applicable laws.

9. Limitation of Liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL WE AND OUR AFFILIATES, PARTNER PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOST PROFITS OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE CLINICAL SERVICES OR FROM THE USE OF OR INABILITY TO USE THE CLINICAL SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT OR OTHER LEGAL THEORY AND EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

10. Use of the Telehealth Services

You agree to the following terms with respect to use of telehealth services provided by Daybreak PCs (the “Telehealth Services”):

  • You understand that there may be possible risks and limitations of the telehealth services, including that it may be possible that your condition cannot be treated via the Telehealth Services, or that information transmitted through the Site or Platform may not be sufficient or of too poor of image quality, or there may be insufficient information or data to allow for appropriate medical decision making. Accordingly, you may be required to seek additional in-person medical care, alternative healthcare or emergency services. If your health or medical problem or condition persists after use of the Telehealth Services, you will immediately contact your medical services provider and seek appropriate additional in-person medical care or emergency care, as appropriate.
  • You understand that in rare circumstances, security protocols could fail, causing a breach of privacy that allows unauthorized persons access to your PHI.
  • You agree NOT to use the Site or Platform using an unsecured public Wi-Fi or other unsecure electronic communication.
  • You agree NOT to record any audio or visual communication transmitted via the Site or Platform, including Telehealth Services, without the express consent of all communicating parties.
  • You understand that you are responsible for providing accurate information through the Site and Platform, including demographics and location information, medical histories, medication use, current adverse conditions, financial information, and keeping all such information current.
  • You agree to follow all recommendations, protocols and other instructions you receive concerning the use of the Site, the Platform, and from Daybreak PCs concerning the Telehealth Services.

11. Reevaluation; Storage and Care

If you receive a Daybreak mandibular advancement device (“Device”) as a result of the Clinical Services, the continued reliability of the Device is dependent upon you. For example, if you gain or lose too much weight, the Device may become ineffective. If tooth migration occurs or significant tooth loss occurs, the Device may not be usable and you may need a dentist’s reevaluation. Reliability is also dependent upon Device care by you. If stored improperly, the Device may deform. You must care for and store the Device according to the directions given. The Device should only be cleaned with soap and warm water and then rinsed well with water before and after use. It should be stored in its original case, in a clean, dry atmosphere, and out of direct sunlight. The Device should not be cleaned or soaked in mouthwash, denture cleanser, hot water (> 122°F) or alcohol.

12. Dispute Resolution

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.It requires you to arbitrate disputes with us and limits the manner in which you can seek relief from us.

Disputes

If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support with any dispute. If we cannot resolve your concerns, the parties hereby agree to a dispute resolution process requiring binding individual arbitration as further set forth in this Section 11. “Disputes” between you and Daybreak PCs are defined for the purposes of this Agreement to include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Daybreak PCs including, but not limited to, any claims relating in any way to this Agreement (including its breach, termination, or interpretation) and any use of Daybreak PCs Clinical Services.

Binding Individual Arbitration

You and Daybreak PCs agree to arbitrate all Disputes, except as expressly set forth in this Section 11. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can.

ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST DAYBREAK PCs. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in the Federal or state courts of Los Angeles, California. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. If any provision of this Arbitration Agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by JAMS or its successor according to this provision. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in Los Angeles County, California, or another mutually agreeable location, or a location ordered by the arbitrator.

The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the or arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, Daybreak PCs will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Daybreak PCs also include respective subsidiaries, affiliates, agents, employees, predecessors, successors, and assigns.

13. General Provisions

We may change, suspend, or discontinue any of the Clinical Services at any time. We will try to give you prior notice of any material changes to the Clinical Services. We will not be liable to you or to any third party for any modification, suspension or discontinuance of the Clinical Services.

This Agreement does not confer any third-party beneficiary rights. You may not transfer any of your rights or obligations under this Agreement to anyone else without our consent. Daybreak PCs may assign its rights in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.

Even after termination, this Agreement will remain in effect such that all terms that by their nature may survive termination will survive such termination.

If you have any questions about this Agreement, please contact support@thedaybreak.com