PhysiApp

This Patient Terms of Use is a legally binding contract between you and Physitrack PLC (“Physitrack,” “we,” or “us”) regarding your use of the online services provided by Physitrack, including the PhysiApp mobile application (the “Service”). PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PHYSITRACK PRIVACY POLICY AND ANY OTHER TERMS REFERRED TO HEREIN AND INCORPORATED BY REFERENCE (TOGETHER, THE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOU MAY NOT USE THE SERVICE IF YOU ARE THE SUBJECT OF U.S. SANCTIONS OR  OF SANCTIONS CONSISTENT WITH U.S. LAW IMPOSED THE BY THE GOVERNMENTS OF THE COUNTRY WHERE YOU ARE USING THE SERVICES.  YOU MUST COMPLY WITH ALL U.S. OR OTHER EXPORT AND RE-EXPORT RESTRICTIONS THAT MAY APPLY TO GOODS, SOFTWARE, TECHNOLOGY AND SERVICES.

NO MEDICAL ADVICE

THE SERVICE DOES NOT PROVIDE MEDICAL ADVICE NOR IS IT INTENDED FOR USE IN THE DIAGNOSIS OR CURE OF MEDICAL CONDITIONS WITHOUT INTERVENTION BY A HEALTHCARE PROFESSIONAL. THE SERVICE IS INTENDED ONLY FOR DISPLAYING EXERCISES AND EXERCISE PLANS AT THE DIRECTION OF A HEALTHCARE PROVIDER, TO TRACK YOUR EXERCISE PROGRESS FOR USE BY YOU AND YOUR HEALTHCARE PROVIDER AND TO FACILITATE COMMUNICATION BETWEEN YOU AND YOUR HEALTHCARE PROVIDER. THE SERVICE MAY CONTAIN GENERAL INFORMATION OR CONTENT (INCLUDING VIDEOS) RELATED TO EXERCISES, TREATMENT AND OTHER HEALTHCARE TOPICS, BUT DOES NOT PROVIDE INTERPRETATIONS OR ANY CLINICAL SUGGESTIONS. ANY SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR CONSULTATION WITH A PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL. YOU ACKNOWLEDGE THAT YOUR HEALTHCARE PRACTITIONER IS RESPONSIBLE FOR ENSURING ANY EXERCISES AND EXERCISE PROGRAMS CREATED FOR YOU ARE APPROPRIATE FOR YOU. NO PART OF THE SERVICE (INCLUDING ANY FEATURE) SHALL BE CONFIGURED OR RELIED UPON IN ANY WAY THAT WOULD SUGGEST THAT IT IS BEING USED AS A MEDICAL DEVICE, THAT IS TO DETECT DISEASE OR TO OFFER DIAGNOSIS OR PROGNOSIS, NOR TO PROVIDE MEDICAL ADVICE BASED ON USER-ENTERED DATA. ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL FOR MEDICAL ADVICE OR INFORMATION ABOUT A MEDICAL CONDITION, INCLUDING DIAGNOSIS AND TREATMENT, BEFORE STOPPING, STARTING, OR MODIFYING EXERCISES OR OTHER ACTIVITIES, ESPECIALLY IF YOU ARE PRONE TO INJURIES, ARE PREGNANT, UNDER 18 YEARS OF AGE, OR HAVE OTHER MEDICAL CONDITIONS. YOU SHOULD SEEK EMERGENCY HELP OR FOLLOW-UP CARE WHEN RECOMMENDED BY A HEALTHCARE PROFESSIONAL OR AS NEEDED. DO NOT DISREGARD OR DELAY SEEKING MEDICAL ADVICE BASED ON ANYTHING THAT APPEARS OR DOES NOT APPEAR IN THE SERVICE. IN THE EVENT OF A POSSIBLE EMERGENCY, CALL 9-1-1.

IMPORTANT INFORMATION ABOUT DISPUTE RESOLUTION

These Terms provide that all disputes between you and Physitrack with respect to your use of the Service will be resolved by binding arbitration, to the fullest extent permitted under applicable law. You agree to give up your right to go to court to assert or defend your rights under this contract, except for matters that may be taken to small claims court, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL arbitrator and not a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 22 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Physitrack.

OTHER TERMS

1. The Service Overview. The Service is an online application intended to display information about exercises and exercise plans, to track your exercise progress for use by you and your healthcare provider, and to facilitate communication between you and your healthcare provider. You understand and agree that the Service does not provide medical advice and you should consult with your physician or other qualified healthcare professional prior to engaging in any exercise or other activity. To the fullest extent permitted by law, you assume all risk and Physitrack is not responsible for any harm to you or others that may occur from your use of the Service. You may not access or use the Service for any other purpose. You are solely responsible for any information, images, videos, or other content or materials you upload to or transmit through the Service (“Communications Data”).
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant that: (a) you are an individual who is at least 18 years old; (b) have not previously been suspended or removed from the Service; (c) your registration and use of the Service is in compliance with applicable laws and regulations; and (d) you have read and agree to our Privacy Policy, as further described in Section 11 below. In these Terms, “you” shall mean the person using the Service.
3. Accounts and Registration. When you register for an account, you may be required to provide us with some information about yourself, such as your email address and password. You agree that the profile information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You understand and agree that as part of the registration process we may use this information to verify your eligibility to use the Service. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@physitrack.com.
4. Payment. Physitrack does not currently charge end-user patients who are not its direct customers a fee to use the Service. If Physitrack changes the fees for the Service, including by adding additional fees or charges, Physitrack will provide you advance notice of those changes. If you do not accept the changes, Physitrack may discontinue providing the Service to you. If you pay any fees (if applicable) with a credit card, Physitrack may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5. Licenses
   a. Limited License. Subject to your ongoing compliance with these Terms, Physitrack grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (i) install the mobile application(s) associated with the Service, and use such mobile applications so installed, solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on devices that you own or control, and (ii) access and use the Service for your personal, non-commercial, lawful purposes.
   b. License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not at any time, directly or indirectly and may not permit any other person to: (i) reproduce, distribute, publicly display, or publicly perform the Service or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Service or any part thereof; or (iii) interfere with or circumvent any feature of the Service or any part thereof, including any security or access control mechanism. You may not use the Service if you are prohibited under applicable law.
   c. Reservation of Rights. Physitrack reserves all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Physitrack intellectual property.
   d. Open-Source Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open-Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms will be deemed to prevent, restrict, or otherwise prevent or restrict you from obtaining such Open-Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
   e. Consent to Communications. By providing us with your contact information and using the Service, you agree to receive communications, including via email and phone calls (including text messages and calls made using an auto dialer or prerecorded voice message) and push notifications from or on behalf of Physitrack using the Service at the email address or telephone number you provided even if that number is on a National or State Do Not Call List. These calls and messages may be for informational purposes, such as to provide you with the information or consultation you requested. Standard text messaging and telephone minute charges applied by your cell phone carrier will apply. You accept that any reliance on these notifications will be at your own risk. Physitrack may, without further notice or warning and in our discretion, monitor and/or record calls and text message-based communications for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others, and you hereby consent to such monitoring and recording.
   
   IF YOU WISH TO OPT OUT OF MARKETING EMAILS FROM US, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. YOU ALSO HAVE THE OPTION TO TURN OFF PUSH NOTIFICATIONS THROUGH YOUR APPLICATION SETTINGS. You understand and agree that you may continue to receive communications while Physitrack processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.
6. Notifications and Automatic Alerts. Physitrack may present notifications, prompts with links to additional information, or suggested actions based on Physitrack’s analysis of information you have provided to it. You agree that Physitrack may send notifications, if enabled, to your mobile device for Service-related purposes in accordance with the Physitrack Privacy Policy. You may turn off push notifications via your application settings. Physitrack makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of any notifications. Any reliance on notifications will be at your own risk, and Physitrack disclaims all liability arising from your use or reliance upon them.
7. Prohibited Conduct. BY USING THE SERVICE YOU AGREE TO COMPLY WITH THE ACCEPTABLE USE POLICY AT www.physitrack.com/privacy.
8. Third-Party Services and Linked Websites. Websites and services provided by third parties, including websites linked through the Services, are not under Physitrack’s control, and we are not responsible for any third-party services, websites or their content.
9. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at support@physitrack.com. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. In addition, Physitrack may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for a reason including, but not limited to, if you violate a provision of these Terms or if we no longer provide any part of the Service, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to the Service or suspension or termination of your access to or use of the Service. Upon the termination of your account, any aspect of the Service, or these Terms for any reason and any data will be deleted by Physitrack after 30 days, in accordance with the Physitrack Privacy Policy which can be found at https://www.physitrack.com/data-retention-policy (including, but not limited to, Communications Data) you submitted through the Service.
10. Privacy Policy; Third Party Services; Additional Terms
    a. Privacy Policy. Please read the Physitrack Privacy Policy at www.physitrack.com/privacy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Physitrack Privacy Policy is incorporated by this reference into, and made a part of, these Terms. You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of your personal information (including sharing data with third party providers) as described therein.
    
    Australia. Physitrack relies on its customers, being your healthcare practitioner, to obtain and store your explicit consent for the provision, storage and use of any health data by Physitrack for the purposes of providing the Services to you in connection with the Platform and/or App. You covenant to Physitrack that you have provided your healthcare provider, who is a customer of Physitrack, with explicit consent for your health data to be provided and used by Physitrack specifically in connection with the provision of the Services to you, including Physitrack´s Platform and/or the App. To the extent legally permissible, neither Physitrack nor any of its Group companies shall be responsible to you or any third party for, and disclaims any and all liability in connection with, any requirements under the Privacy Act 1988, particularly the requirement to obtain and store explicit consent of end users in respect of their health data.
    b. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, our informed consent forms, if applicable, or rules that are applicable to a particular feature or content on the Service, subject to Section 12. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11. Modification of these Terms. We reserve the right, at our discretion, to change these Terms at any time. The updated Terms will be published on our website.  If a change to these Terms modify your rights and obligations, we may notify you of the modified Terms by email to the address you have provided in your user profile. Modifications are effective upon publication.  Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Ownership; Proprietary Rights. The Service is owned and operated by Physitrack. The visual interfaces, graphics, design, compilation, information, data, code (including source code or object code), software, services, and all other elements of the Service (“Materials”) provided by Physitrack are protected by intellectual property and other laws. All Materials included in the Service are the property of Physitrack or our third-party licensors. Except as expressly authorized by Physitrack, you may not make use of the Materials. Physitrack reserves all rights to the Materials not granted expressly in these Terms.
13. Subcontractors. You hereby consent to Physitrack’s engagement of third parties (including Physitrack’s affiliates) to perform, provide, or support the performance or provision of, all or any portion of the Service or the Physitrack website.
14. Feedback. If you choose to provide input or suggestions regarding your experience with the Service (“Feedback”), then you hereby grant Physitrack an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
15. Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will defend and indemnify Physitrack and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Physitrack Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any part of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) fraud, intentional misconduct, criminal acts, gross negligence, or negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our DEFENSE OF THAT CLAIM.
16. DISCLAIMERS; NO WARRANTIES. THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH IT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. PHYSITRACK ENTITIES DISCLAIM, AND YOU HEREBY EXPRESSLY WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH IT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE COMMUNICATIONS DATA OR OTHER INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE. THE PHYSITRACK ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF IT, OR ANY MATERIALS OR CONTENT OFFERED THROUGH IT, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHYSITRACK OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PHYSITRACK ENTITIES OR THE SERVICE NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH IT AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, OR LOSS OF DATA THAT RESULTS FROM SUCH USE, ACCESS OR DOWNLOAD OF THE SERVICE OR ANY RELATED MATERIAL OR CONTENT. THE FOREGOING SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. YOUR RIGHTS AND/OR THE PROHIBITION OF DISCLAIMER OF WARRANTIES MAY VARY FROM JURISDICTION TO JURISDICTION.
    
    Physitrack does not warrant or represent the accuracy, completeness or suitability for any intended use of any information or content available through the Service, including without limitation, any medical related or healthcare information, advice or content including exercise programs and instructions made available via the Service.
    
    You acknowledge that the Platform and app are designed to be compatible only with that software and those systems specified by Physitrack as compatible. Physitrack does not guarantee that the Platform and/or the app will be compatible with any other software or systems; that its use will lead to certain results; or that its Content will be accurate, up-to-date and complete.
17. Limitation of Liability. IN NO EVENT WILL ANY PHYSITRACK ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, GOODWILL, REPUTATION, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SERVICE OR ANY MATERIALS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PHYSITRACK ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. THE AGGREGATE LIABILITY OF THE PHYSITRACK ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PRODUCTS SOLD THROUGH THE SERVICE, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE RISKS BETWEEN THE PARTIES HEREUNDER. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS LIMITS OR EXCLUDES LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW OF THE RELEVANT JURISDICTION.
    
    You and your healthcare practitioner shall be solely responsible (and Physitrack shall have no liability) for configuring any exercise program and Physitrack does not accept any liability including for injury or otherwise resulting from use of the Platform and/or the app. Physitrack disclaims any and all liability that arises from configuration or reliance on the Service or any feature of it, including but not limited to any auto-intake feature, as being a medical device or medical advice. You shall be solely responsible for the accuracy and completeness of any information provided to Physitrack including during any intake process and thereafter. Physitrack is not responsible for training you to use the Service. You should refer any queries regarding use of the Service to your healthcare provider. Information provided through the Service and the use of the Service by you does not automatically create a doctor-patient relationship between you and any health professionals who may be affiliated with Physitrack.
    
    Physitrack is ISO27001 certified and shall take steps to prevent unauthorised and unlawful destruction, loss, alteration or access to personal data transmitted, stored or processed by it. However, it shall not be responsible for, and expressly disclaims all liability in respect of: (i) operation of your infrastructure; (ii) loss, damage, inaccuracy and/or incompleteness of any content accessed via the Service; (iii) transmission errors, malfunctions or non-availability of any computer, data or telecom facilities; (iv) unauthorized use of the Platform and the app; or (e) any other manner in which the Platform and/or the app are used. Physitrack disclaims, and shall be held harmless from, any liability arising directly or indirectly from a service not purchased from it.
18. Force Majeure. To the fullest extent permitted under applicable law, Physitrack will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to Physitrack’s information technology systems by third parties; or (g) other causes beyond the reasonable control of Physitrack.
19. Governing Law and Venue. These Terms and your use of the Service are governed by the laws of the State of New York, USA without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Physitrack agree to submit to the exclusive jurisdiction of the state courts and federal courts located within New York, USA, for the purpose of resolving any dispute, and you hereby consent to the personal jurisdiction and venue thereof. We operate the Service from the United States, and make no representation that Materials included in the Service are appropriate or available for use in other locations.
20. General. These Terms, together with the Physitrack Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire understanding and agreement between you and Physitrack regarding your use of the Service. Except as expressly permitted herein, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under them, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, the “NO MEDICAL ADVICE” section, and Sections 2, 5, 7-9, and 11-24, along with the Physitrack Privacy Policy and any other accompanying agreements, will survive.
21. DISPUTE RESOLUTION AND ARBITRATION
    a. Generally. In the interest of resolving disputes between you and Physitrack in the most expedient and cost-effective manner, you and Physitrack agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court and uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief as a court. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after termination of these Terms. You understand and agree that, by entering into these terms, You and Physitrack are each waiving the right to a trial by jury or to participate in a class action.
    b. Exceptions. Despite the provisions of Section 22(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue enforcement action through applicable federal, state, or local agency if the action is available; (iii) seek injunctive relief in a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim.
    c. Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and Physitrack will be settled under the Federal Arbitration Act and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available at www.adr.org, or by contacting Physitrack or the AAA at 1-800-778-7879.
    d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Physitrack’s address for Notice is: Attn: Legal, Bastion House, 6th Floor, 140 London Wall, London, England, EC2Y 5DN, United Kingdom and email: legal@physitrack.com. The Notice must describe: (i) the nature and basis of claim or dispute; and (ii) specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach agreement within 45 days after Notice is received, either may commence an arbitration proceeding. The amount of any settlement offer made by you or Physitrack must not be disclosed to the arbitrator until the arbitrator makes a final decision and any award.
    e. Fees. The payment of any fees will be decided by the AAA Rules unless otherwise agreed in writing. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. If the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you may be liable for payment of fees as governed by the AAA Rules. In that case, you agree to reimburse Physitrack for any monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision with essential findings and conclusions on which the decision and any award are based.
    f. No Class Actions. To the fullest extent permitted under applicable law, you and Physitrack 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. Unless both you and Physitrack agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not preside over any form of a representative or class proceeding.
    g. Modifications to this Arbitration Provision. If Physitrack makes any future change to this arbitration provision, other than a change to Physitrack’s address for Notice, you may send written notice of rejection within 30 days of the change to Physitrack’s address for Notice, in which case the rest of these Terms shall continue to apply or the account with Physitrack will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
    h. Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with this Section. For new users, the Opt-Out Notice must be postmarked no later than 30 days after the date you use the Service for the first time. You must mail the Opt-Out Notice to Physitrack, Bastion House, 6th Floor, 140 London Wall, London, England, EC2Y 5DN, United Kingdom. The Opt-Out Notice must state that you do not agree to the arbitration agreement and must include your name, address, phone number, and email address(es) used to log in to the (s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. If you opt out of the arbitration agreement, Physitrack will likewise not be bound by the arbitration provisions. The rest of these Terms will continue to apply. Opting out of the arbitration agreement has no effect on any previous, other, or future arbitration agreements you may have with us.
    i. Enforceability. If Section 22(f) is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 (except this Section 21(i)) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.
    j. Claims. To the fullest extent permitted by law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. To the extent permitted by law, all statutes or provisions of law which would toll or affect the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend this limited period.
22. Export and Sanctions. You accept that you may not use the Service if you are, and you represent and warrant that you are not; on any U.S. Government list of prohibited or restricted parties; nor the subject of U.S. sanctions, Government embargo or sanctions consistent with U.S. law imposed by governments of the country where you are using the Services. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
23. Contact Information. The Service is offered by Physitrack. You may contact us by emailing us at support@physitrack.com, or writing to us at Attn: Legal, Bastion House, 6th Floor, 140 London Wall, London, England, EC2Y 5DN, United Kingdom.
24. Consumer Protection Notice. Physitrack appreciates the opportunity to try to resolve any complaint you have regarding the Service in the first instance by contacting it directly by email to support@physitrack.com. Please note that if you are a consumer, the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. For example, a California resident, under California Civil Code Section 1789.3, may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs to receive further information regarding use of, or a complaint relating to, the Service.
25. Notice Regarding Apple and Google. This sub-section only applies to the extent you are using our mobile application(s) on an iOS or Android (as applicable) device in connection with the Service. You acknowledge that these Terms are between you and us only, not with Apple Inc. (“Apple”) or Alphabet Inc. (“Google”), and neither Apple nor Google are responsible for the Service, or maintenance or support in connection with the Service, by way of this Agreement. Your right to use the Service in application form on an iOS or Android device is limited to a non-transferable license to use the application on such branded products that you own or control and as permitted by the Usage Rules set forth in any relevant Terms and Conditions of Apple Media Service or Google. Apple and Google are not responsible for investigating or addressing any claims relating to the Service. Such responsibility is allocated between us under these Terms. You agree to comply with any applicable third-party terms when using the Service. Upon your acceptance of these Terms, Apple, its subsidiaries and Google may have the right to enforce these Terms against you as third-party beneficiaries.

Last Updated: May 2022

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