USER AGREEMENT – TERMS & CONDITIONS OF SERVICE

 

PLEASE READ THESE TERMS CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF OUR SERVICES. THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT. 

PREAMBLE

 

THIS USER AGREEMENT (hereinafter, “Agreement”) is entered into between ExpressCHEX LLC, Buena Vista Medical Services and affiliates or assignees (hereinafter together referred to as “Administrator”) and the user of the below referenced Services (hereinafter “User”) and User’s attorney representing the User’s personal injury claim or case associated with the use of the Services, (hereinafter “Attorney”). 

 

RECITALS   

 

WHEREAS, this agreement is concerning Administrator providing billing and non-recourse financing business services which enables pharmacies to sell prescriptions on a lien basis and allows attorney to include prescription services to User’s personal injury claim or case via a Pharmacy Card, (hereinafter “Services”).

 

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties and covenants contained herein it is agreed as follows: 

TERMS AND CONDITIONS

SECTION 1: Certification, Authorization and Release in Accordance with HIPAA.

1.1 User and Attorney certify that the information provided herein is correct and complete. User understands that, in accordance with the Health Insurance Portability and Privacy Act of 1996 (“HIPAA”), User’s medical information relating to this personal injury case may be shared to manage and expedite User’s medical treatment. User authorizes User’s Provider, Administrator, or Attorney to secure, release, and discloses such medical and non-medical information with companies and individuals as deemed necessary, and further agrees that examinations, diagnoses, medical treatments, films and reports can be shared with necessary parties involved in User’s case.

1.2 Attorney and User acknowledge and represent that Attorney has obtained a Release of Medical Information from User for purposes of communications regarding User’s medical information and that Administrator is covered by said Release.

 

SECTION 2: Representations and Warranties.

2.1 User acknowledges and understands that User has multiple options to fund User’s prescriptions and medical treatment, including the use of health insurance, government programs and health maintenance organizations (hereinafter “Payer”). User acknowledges that Administrator charges administrative fees to each item and consolidates all fees into a universal bill. Now, therefore, User acknowledges that there may be medical providers or pharmacies who would provide the same Services for a lower cost or for only the costs that the User would be responsible for under any insurance policy. User either (a) does not have insurance (b) User’s insurance does not cover the services covered by Administrator’s Services, or (c) User has decided voluntarily that obtaining the procedure(s) or prescriptions(s) subject of this lien on a lien basis is preferable to User, and in User’s best interest. User agrees that User shall not request that the Administrator bill User’s health insurer or any alternate Payer at any date after executing this Agreement.

2.2 User voluntary chooses to obtain treatment on a lien basis, and, therefore, will not utilize other forms of funding. User shall not submit the medical charges subject to the lien to User’s health insurance company (if any) for reimbursement or to apply towards User’s deductible. Administrator will, therefore, bill User for services on a lien basis. User acknowledges that it has incurred the amount billed on a lien basis in exchange for Administrator’s Services. User and Attorney acknowledge that Administrator will not be required to and will not bill User’s health insurance, Workers’ Compensation, government or other medical insurance coverage, if any.

2.3 User acknowledges that Administrator may assign this lien without User’s or Attorney’s consent and may use information provided by User or Attorney to assist in the assignment, where lawful to do so, for the purposes of assisting in the assignment transaction process. User understands that Administrator is not a medical provider or pharmacy and attests that Administrator has not provided any medical treatment, advice, prescribing or dispensing of medications, or any other related professional medical services to User. All medical treatment, advice, prescribing dispensing of medications, or any other related professional medical services to User is provided by a licensed medical professional or pharmacy, whereas Administrator is providing the funding of said professional medical related services on a lien basis and includes the cost of said services in the Usual and Customary Pricing (subsection 3.5)

2.4 This Agreement, including the Arbitration Agreement, and Waiver & Acknowledgement of Services on a Lien shall be binding upon and inure to the benefit of the parties and their respective successors, heirs (in the case of the User) and assigns. User instructs Attorney to afford the same respects, rights and privileges to Administrator as Attorney would afford to Provider under the terms of this Agreement and to forward any and all payments to Administrator. User understands that User may terminate this Agreement and lien any time prior to obtaining any Services from Administrator by providing written notice to Administrator. Administrator’s contact information is located at the bottom of this Agreement. User understands and agrees that this Agreement may not be terminated or rescinded by Administrator except by express written notice by Administrator.

2.5 The waiver by any party of a breach or violation of any provision of this Agreement shall not operate as, or be interpreted to be, a waiver of any later breach of the same or any other provision of this Agreement. If any portion of this Agreement is held to be unenforceable for any reason, the unenforceability of such provision shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms. No verbal agreement concerning the subject matter of this Agreement shall be effective unless reduced to writing and signed by each of the parties. User understands that User is represented by Attorney and has sought Attorney’s counsel on any decision regarding the funding of User’s medical care or for any questions User may have relating thereto. This Agreement may be signed in parts and have the same force and effect as though executed in one document. A photocopy and/or fax copy of the executed Agreement shall have the same force and effect as the original.

 

SECTION 3: Grant of Lien for Services.

3.1 User and Attorney understand that the Services User is receiving from Administrator as part of the ongoing personal injury claim may be billed as a lien as may be authorized by applicable state law and practice. User hereby assigns to Administrator, and grants it and Administrator a lien on the proceeds that may be recovered on User’s behalf as a result of any judgment, settlement, arbitration, mediation, litigation, award, verdict, or any other collection activities on User’s personal injury claim, in which User is represented by Attorney, in an amount equal to all such sums as may be due Administrator for any and all Services rendered to User. User and Attorney acknowledge that Administrator may assign and intends to assign the lien and its right to payment to Administrator, and that Administrator may have the exclusive right to collect all amounts due for services by Administrator. Attorney agrees to pay Administrator out of any judgment, settlement, arbitration, mediation, litigation, award, verdict, or any other collection activities on User’s personal injury claim, in which User is represented by Attorney, in an amount equal to all such sums as may be due Administrator for any and all Services rendered to User. User directs Attorney to pay Administrator out of any judgment, settlement, arbitration, mediation, litigation, award, verdict, or any other collection activities on User’s personal injury claim, in which User is represented by Attorney, in an amount equal to all such sums as may be due Administrator for any and all medical treatment or services rendered to User.

3.2 User and Attorney agree that this lien may cover all services User receives from Provider. Except for states in which fees are capped by statute, User and Attorney hereby waive any right to object to any fees charged by Administrator that are the subject of this lien based upon a claim that they are unreasonable or excessive. User and Attorney hereby waive any right to challenge or object to the amount of any such fees or charges on that basis.

3.3 User authorizes and directs Attorney to pay Administrator directly for any billings and fees arising out of the Services, arising out of User’s personal injury claim and by reason of any other bills which User may owe Administrator. User and Attorney will notify Administrator of any payment received by User for medical services from an insurance company or other source, and User will instruct his/her attorney to likewise notify Administrator. All payments up to the amount secured by the lien shall be forwarded to Administrator. Administrator’s ability to collect any amounts shall be limited to applicable law and practice. User acknowledges that the legal settlement may pay all, part, or none of this amount and that User is responsible for complete payment. User understands that User is financially responsible for any amount not paid pursuant to this assignment, as may be authorized by applicable state law and practice.

3.4 Attorney hereby agrees to observe all terms stated herein and agrees to withhold such sum payable to Administrator, from any settlement, judgment or verdict as may be necessary to adequately protect Administrator. Attorney shall hold in Attorney’s Client Trust Account such sums from any payment, settlements, dispositions, proceeds and/or verdicts received on User’s behalf as may be required to adequately protect and pay Administrator for Services. Attorney is further directed to pay from Attorney’s Client Trust Account to Administrator that amount which is due and owing for those Services by Administrator. Attorney further agrees that in the event User secures other counsel in connection with any action instituted by User on account of the injuries for which User was treated, Attorney shall inform such new counsel of this Agreement, and will attempt to secure new counsel’s consent thereto.

 

SECTION 4: Arbitration Agreement.

READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR RIGHT TO A JURY TRIAL.

User, Attorney, and Administrator mutually and voluntarily agree to the following:

4.1 Any and all disputes, claims or controversies arising out of or in connection with this Agreement or in any way connected to User’s Services or the Attorney’s relationship with Administrator, no matter how described, pleaded or styled, including claims arising in tort and/or contract, shall be decided exclusively and finally by binding arbitration. All parties hereby WAIVE THEIR RIGHT TO A JURY TRIAL by agreeing to binding arbitration. The arbitration hearing shall be conducted at a location within twenty (20) miles of User’s address, if User is a party, or Attorney’s address, if Attorney is a party, as specified in this Agreement. If the attorney and User are both parties, then the arbitration hearing shall be conducted at a location within twenty (20) miles of User’s address. The arbitration shall be conducted before the American Arbitration Association (the “AAA”), pursuant to the AAA Commercial Arbitration Rules, available at www.adr.org or upon request.

4.2 The arbitration shall be conducted by one neutral arbitrator appointed by the AAA. The arbitrator shall have actual experience in and knowledge of the subject matter of this Agreement to the greatest extent practicable, unless both parties agree otherwise. The arbitrator shall have the authority to award any monetary and nonmonetary relief available to either party in an action otherwise prosecuted in court, including injunctive and other provisional relief. Judgment on the arbitration award may be entered by any court of competent jurisdiction. The cost of initiating the arbitration and the arbitrator’s compensation (but excluding fees and costs of User’s counsel, if any) shall be paid by Administrator.

4.3 This arbitration shall be solely between the parties to this Agreement, and no class arbitration or other representative action may be undertaken by the arbitrator, and the arbitrator shall have no power to consolidate or join claims of other parties or persons who may be similarly situated.

4.4 The Federal Arbitration Act (“FAA”) and related federal law shall govern the interpretation and enforcement of this Paragraph to the fullest extent possible, to the exclusion of all otherwise potentially applicable state law, regardless of the location of the arbitration proceedings or the nature of the disputes or controversies between the parties to this Agreement. The arbitrator shall apply federal law consistent with the FAA and, including applicable statutes of limitations and shall honor claims of privilege recognized at law.

4.5 With the exception of subpart (4.3) above, if any part of this arbitration agreement is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.

4.6 User may elect to opt out of this arbitration provision by sending written notice to Administrator before 5:00 p.m. Eastern Time on the tenth (10th) calendar day after this Agreement is executed, or such notice shall be of no force and effect. Administrator’s contact information appears below. The foregoing time limit shall be strictly construed. Opting out of this arbitration provision shall not terminate the Agreement or otherwise affect in any way any of the other rights and obligations of the parties hereto under the terms of the Agreement. User and Attorney agree that they have read and understand the Arbitration Agreement. User and Attorney represent that the preceding statement is true and correct to the best of their knowledge.

 

SECTION 5: Attorney’s Fees and Expenses.

5.1 In the event of any litigation, arbitration or any other action to collect on, enforce or determine the validity of this Agreement or in any way connected to User’s medical services, the prevailing party in any such action or proceeding shall be entitled to recover reasonable attorney’s fees and actual costs, including fees and costs related to any suit, mediation or arbitration proceeding, appeal, bankruptcy proceeding or other proceeding, in such amount as may be determined by any arbitrator or court, whichever is applicable.

 

SECTION 6: User and Attorney Information.

6.1 By using the Services to purchase prescriptions, User and Attorney fully understand all provisions set forth in this Agreement.

Acknowledgement of User

If this account is assigned for collections and/or lawsuit, User is responsible for all collection costs/interest and attorney fees and court costs, and will be added to the amount due.

By using the Services, User hereby authorizes and directs their Attorney, to pay directly to Administrator, all sums that maybe due for medical, prescription or diagnostic Services rendered to me by reasons of the accident dated above or by reason of any other bill that is due to Administrator and to withhold such sums from any settlement, judgment, or verdict.

 

User understands that they are directly responsible to Administrator for bills submitted by them for Services, and this agreement is made solely for their additional protection in consideration of the delayed payment. User authorizes their Attorney to provide Administrator a complete copy of their legal records, including but not limited to copies of settlement disbursements, fee and cost accounting documents, and settlement checks, at any time that Administrator so demands. This authorization is irrevocable during the period of time that any balances due and owing to Administrator. Further, User and Attorney understands that the obligation to Administrator is non-assignable to any third party.

Acknowledgement of Attorney

By requesting the Services for and being attorney of record for the above User, Attorney does hereby agree to observe all the terms to the above and agrees to withhold such sums from and settlement, judgment, or verdict as may be necessary to adequately protect Administrator.

 

This office holds an assignment/lien on this case for services rendered. Any settlement of this claim without honoring this assignment/lien will cause you to be responsible for this office for payment. Attorney agrees that Attorney will be personally responsible to pay the full lien balance if attorney:

Does not pay Administrator directly for User’s entire Services upon settlement, judgment and/or award. If a written fee reduction is allowed by Administrator, the reduced amount or; Releases/forwards User’s settlement, judgment and/or award funds directly to User without paying Administrator, requiring Administrator to seek payment from User rather than attorney.

 

Waiver & Acknowledgement of Services on a Lien

 

By signing this Agreement, User acknowledges and agrees to the following:

 

User has considered all possible sources of funding for User’s medical expenses, including but not limited to, liability insurance medical payments, MedPay, health insurance, HMOs, PPOs, Medicare, Medicaid, TriCare, Champus, VA Insurance, and payments available through any applicable state “no fault” provisions (hereinafter collectively “Other Funding Sources”).

 

User voluntarily elects to receive Services on a lien and waives use of Other Funding Sources. Upon thorough review and consideration of the availability of Other Funding Sources, User has decided that obtaining Services on a lien against all judgments, settlements, and settlement agreements rendered or entered into that arise from the illness or the injuries necessitating the Services is preferable and beneficial to User.

 

User acknowledges that no Other Funding Sources will be billed for these Services, and that User will be solely responsible to the extent permitted by law for the bills and invoices to Administrator if they are not covered, in part or in full, by any judgments, settlements, and settlement agreements arising from User’s personal injury claims or lawsuits. User directs Attorney to reimburse Administrator for all Services received on a lien and provided pursuant to this Agreement out of any and all judgments, settlements, and settlement agreements rendered or entered into that arise from the illness or the injuries necessitating the Services.

 

User has reviewed this Agreement with User’s attorneys, including the one named above.

 

User expressly acknowledges and agrees that User is assuming any and all risks associated with obtaining Services on a lien and releases Administrator, their directors, officers, employees, and agents from any and all claims for loss, expense, damage, or liabilities of any kind that User may incur as a result of this decision. User declares and represents that, by signing this Acknowledgement, it is understood and agreed that User relies upon User’s own judgment, belief and knowledge and that User has not been influenced in making this release by any representations made by Administrator.

 

User requests and orders User’s Administrators to not bill any of User’s Other Funding Sources, and User orders Other Funding Sources to not make any payments to User’s Administrator; User shall forward this waiver to any Other Funding Sources as User deems necessary. Administrator shall not be required to accept payment from any Other Funding Sources even in the event that Other Funding Sources has contracted with the User or the Administrator for the payment of User’s medical bills.

 

Administrator, assume no duty to advise or investigate Other Funding Sources, even should they obtain such information. User shall have the right to revoke this waiver by providing written notice to Administrator at the fax number below any time prior to receiving Services secured by a lien.

 

If User is a Medicaid beneficiary, User acknowledges & agrees that: Administrator have explained and User understands that Administrator will not be billing Medicaid and will instead be recovering directly from User based on amounts and settlements paid by liable third parties. Administrator has explained, consistent with requirements under state law, that the Services provided to User may be Medicaid-covered services, and that other medical providers may render the service at no cost to the User. User hereby agrees that Administrator is entitled to reimbursement from User for Services provided to User. User further acknowledges and agrees that such reimbursement is recovery from the liable third parties for reimbursement owed to Administrator for Services rendered to User. User hereby acknowledges that Administrator has established their right to payment from any and all settlements or awards from third parties for Services provided to User, and these rights are separate from any amounts claimed and established by User from any and all settlements or awards from third parties.

 

For Medicaid beneficiaries: User is liable to the extent medical services are paid out of proceeds obtained from User’s personal injury claim or lawsuit.

 

If you have any questions regarding this case, please contact our Case Management Department at (844) 796-3322 Option 2 or PO Box 33081 Charlotte, NC 28233. Keep one copy for your records.