NO MEDICAL ADVICE
You acknowledge and agree upfront that the Service and content available through the Service are not a substitute for a health care professional’s professional judgment in diagnosing and treating patients and You will use Your own professional judgement in relation to the foregoing. Neither Physitrack nor the Service, content, devices or software gives medical advice or provides medical or diagnostic services. Reliance upon the Service, content, devices or software by You or any of Your authorised users (defined below) is solely at Your and their own risk. You acknowledge and agree that Physitrack is in no way responsible for the use of any pharmacological, medical, legal or similar information contained in, entered into or used in connection with the service, and You and authorised users, as applicable, should verify the accuracy of the information and completeness of such information whenever necessary to do so for providing health care services. You acknowledge and agree that the use of the service by You and authorised users for any purpose related to patient care should be under the supervision of a healthcare professional. As between Physitrack and You. You shall be solely responsible and liable for Your treatment and care of patients, including all responsibility for personal or psychological injury or loss of life.
1. The Service Overview. You may not access or use the Service for any other purpose than as permitted by Physitrack under these Terms. You may access the Service only if authorised by an Organisation that has purchased the right to use the Service (“Physitrack Customer”). Your access is subject to the discretion and control of the Physitrack Customer as well as Physitrack under these Terms.
2. Responsibility for Authorised Users. “Authorised User” means each individual user of the Service permitted to use the Service by You, including personnel, other Organisations, and patients. For the avoidance of doubt, the Organisation is responsible and liable for any non-compliance with these Terms by its Authorised Users. You are responsible for any and all acts and omissions by the Authorised Users and their accounts in connection with the Service; the content and data transmitted to or from the Service by You or Authorised Users or their accounts; and for the effects of any breach of security in connection with the activity of Authorised Users’ accounts in connection with the Service. You are solely responsible for Your and the Authorised Users’ interactions with patients in connection with and separate from the Service. You are responsible for ensuring that all diagnoses are carried-out by a healthcare practitioner, and all exercises and/or other actions to cure, mitigate, treat, or prevent disease or other conditions are prescribed and carried-out by a healthcare practitioner. You are solely responsible for obtaining, installing, maintaining and operating all necessary software, hardware or other equipment to use and access the Service. Your responsibility shall also include utilising up to date web browsers, antivirus, anti-spyware and internet security software. Physitrack entities and its licensees or licensors shall not bear any responsibility or liability for interruption, non-performance of the Service or for loss and theft of personal data which results owing to the aforementioned factors.
5. Accounts and Registration. To access most features of the Service, You must register for an account. 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 firstname.lastname@example.org.
6. Payment. You shall pay the fees to Physitrack in accordance with these Terms and the terms posted on the web pages during Your purchase of access to the Service. You authorise Physitrack, through its payment processor, to charge a fee to the payment method You provide which shall be due on the first date of your initial monthly subscription period and Physitrack shall be authorised to continue charging the same fee in advance for each subsequent subscription period. All fees are non-refundable, to the fullest extent permitted under applicable law. Physitrack reserves the right to change the fees for the Service, including by adding additional fees or charges. If You do not accept the changes, you may unsubscribe from the Service according to these Terms. If You pay any fees 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. Unless otherwise provided, the Fees do not include any taxes or duties (including sales, use, value-added and withholding taxes and duties) and related fees (“Taxes”) and You are responsible for paying all Taxes arising from Your purchases hereunder. If You do not pay the amounts due to Physitrack under these Terms, such amounts will bear interest from the due date until paid at a rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is greater, without limiting Physitrack’s other rights and remedies. If a cancellation occurs within 10 days from renewal of the subscription period, the cancellation shall take effect at the end of, and Physitrack reserves the right to charge for the subsequent subscription period. Failure to provide full and timely payments may result in an immediate default without advance demand or notice required. In which case, Physitrack may immediately terminate or suspend Your access to, and use of, the Service, in whole or in part, until outstanding payments including any interest owed are made in full.
(a)Limited License. Subject to Your ongoing compliance with these Terms, Physitrack grants You and Authorised Users a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to (i) install the mobile application(s) associated with the Service and use such mobile applications so installed, solely in object code format on devices that You own or control, and (ii) access and use the Service, and for (i) and (ii) solely for business use for conducting clinical consultations, assigning Physitrack’s and Your video exercises available through the Services to users, managing home exercise programs and collecting user report outcomes.
(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 or entity 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. If You are prohibited under applicable law from using the Service, You may not use it.
(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.
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 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.
Physitrack makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of any push notifications. You accept that any reliance on these notifications will be at Your own risk, and Physitrack disclaims all liability arising from Your use of them or reliance upon them.
8.Acceptable Use. BY USING THE SERVICE YOU AGREE NOT TO, directly or indirectly not to permit any Authorised Users or any other person to violate the Acceptable Use Policy.
9.Security of your Account. Where You have registered an Account, You are responsible for keeping the identifiers associated with that Account secret. As soon as You know or have reason to suspect that the identifiers are no longer secret, or that the Account is being abused or security has been compromised, You must notify Physitrack immediately and take all necessary steps to prevent unauthorised access including changing relevant identifiers and taking other security measures as recommended by Your infrastructure provider.
You are not permitted to:
- provide information to Physitrack during Account registration that is not accurate, complete and up-to-date;
- create more than one Account for the same individual user; or
- share an Account.
You, as the healthcare provider, may download from the Service the patient’s exercise program and compliance history strictly for the purpose of maintaining the patient’s records and must not sell, redistribute or use for any other purpose. You may not use any means for the export and/or download of Your patient’s exercise program and compliance history, other than the means expressly provided for such purpose by Physitrack. Patients may download from the Service their exercise programs and account details strictly for their personal, non-commercial use only, provided they keep intact all copyright and other proprietary notices.
10.Third-Party Services and Linked Websites.
Websites and services provided by third parties are not under our control, and we are not responsible for any third party services. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for them or their content. Physitrack may provide application programming interfaces to allow integration of the Service with other services and platforms. Physitrack is not responsible for (and expressly disclaims all liability to You and any third party in respect of) such other services and platforms which the Service integrates with or which integrate with the Service. Physitrack does not endorse any information on linked sites or any associated organisation, product or services.
11.Information on the Service
11.1 All exercises available on the Service are demonstrations only. You acknowledge that healthcare providers are responsible to ensure that any exercises and exercise programs created for a patient are appropriate for that patient.
11.2 Physitrack does not endorse or recommend any information on the Platform or made available through the Service. All information contained on the Platform and through the Service may not be sold, redistributed or used for any other commercial purpose.
11.3 There is always the possibility of physical injury when patients are participating in any exercise or exercise program. You represent that your patients have informed You, as their healthcare provider, of their medical history and existing conditions and have received their consent to participate (and continue to participate) in the programs and exercises available to them on the Service. You represent that You have informed Your patients that if they feel discomfort or pain, they should immediately stop the activity causing such discomfort or pain and contact their healthcare provider or an ambulance in the case of a medical emergency.
11.4 If You transfer a patient from Physitrack to another service provider, it is Your responsibility, or the responsibility of the transferring health practitioner, to ensure that You maintain records relating to the patient in accordance with law.
12. Termination of Use; Discontinuation and Modification of the Service. You may terminate Your account at any time by following the prompts in the Platform or by contacting customer service at email@example.com. Your termination will take effect at the end of the current billing period unless Your termination notice is received by us less than ten (10) days before the end of the billing period in which case the termination will take effect at the end of the following billing period. If You violate any provision of these Terms (including payment obligations), Your permission from us 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 if You violate any provision of these Terms, if we no longer provide any part of the Service, or for another reason, 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 any 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, Physitrack will delete any data You submitted through the Service within 30 days (and delete from ‘back up’ within another 90 days) in accordance with the Physitrack Data Retention Policy which can be found at https://www.physitrack.com/data-retention-policy.
(a)United Kingdom and global (excluding Australia and the USA). The provisions of Schedule 1 shall apply to any personal data processed by Us on Your behalf, where You are the Data Controller and Physitrack is a Data Processor and the provisions of UK GDPR or EU GDPR apply.
(b)Australia. Physitrack relies on its customers, being healthcare providers, to obtain and store their patients´ explicit consent for the collection and use of any patient health data by Physitrack for the purposes of providing the Services to You and any end users, including access to the Physitrack Platform use of the Physitrack Mobile App and PhysiApp (to the extent applicable).You covenant to Physitrack that You have obtained and stored the explicit consent from Your patients in compliance with the Privacy Act 1988 for the provision and use of Your patients’ health data for the purposes of use in connection with the services provided by Physitrack. You agree to indemnify, hold harmless and keep indemnified Physitrack for any losses, damages, costs, orders, expenses or penalties that may be incurred by Physitrack or any of its Group companies for any breach of the foregoing by You or caused by your failure to comply with the foregoing, particularly any failure by You to obtain the explicit consent from Your patients with respect to their health data which is made available as individual end users of Physitrack’s Services, including the Physitrack Platform, Mobile App or PhysiApp.
14.Additional Terms. You acknowledge that Your use by end-users of the Service is subject to all additional terms, policies, rules, or guidelines to the extent applicable to the Service or certain features of the Service that we may post on or link to from the Service from time-to-time (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 15. All Additional Terms are incorporated by this reference into and made a part of the Terms (as applicable).
15.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 modifies 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.
16.Ownership; Proprietary Rights. The Service is owned and operated by Physitrack. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, videos, content, information, and all other elements of or available through the Service (“Materials”) provided by Physitrack whether registered or unregistered, or pending application for registration in any other jurisdiction 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 authorised by Physitrack, You may not make use of the Materials. Physitrack reserves all rights to the Materials not granted expressly in these Terms. Nothing in the Terms and Conditions of Service is intended to entail any transfer of intellectual property rights to You. You further undertake and agree not to assert any rights of title of such intellectual property rights (including foreground intellectual property) whether in law or equity in any jurisdiction. Subject to the other terms of these Terms of Service, by making available or uploading Content to the Service, You automatically grant Physitrack a cost-free, worldwide, irrevocable, sub-licensable and transferrable right to use this Content insofar as is related to the provision of the Service.
17.Customer Content and Customer Data Generally. Certain features of the Service may permit You or Authorised Users to upload, submit, or store content to the Service, including documents, messages, reviews, images, videos, text, and other types of information (“Customer Content”) and data (including questionnaire questions and responses) (“Customer Data”) and to publish or deliver Customer Content and/or Customer Data on or through the Service. The licensor of the Customer Content and/or Customer Data retains any copyrights, moral rights, and any other proprietary rights held in the Customer Content and/or Customer Data that is posted to the Service. By posting or publishing Customer Content, You grant Physitrack a worldwide, non-exclusive, royalty-free, fully paid, unrestricted right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify, and distribute Your Customer Content and/or Customer Data, in whole or in part, in any media formats and through any media channels now known or hereafter developed in connection with the Service. You are solely responsible for Your Customer Content and/or Customer Data and the consequences of posting or publishing Customer Content and/or Customer Data. By posting or publishing Customer Content and/or Customer Data, You affirm, represent, and warrant that: (a) You are the creator and owner of the Customer Content and/or Customer Data, or have the necessary licenses, rights, consents, and permissions to authorize Physitrack and users of the Service to use and distribute Your Customer Content and/or Customer Data in the manner contemplated by the Service, Physitrack, and these Terms of Service; and (b) Your Customer Content and/or Customer Data, and the use of the Service as contemplated by these Terms of Service, does not and will not: (x) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (y) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (z) cause Physitrack to violate any law or regulation, including laws related to the privacy of personal or health information. We are under no obligation to monitor, edit, or control Customer Content and/or Customer Data that You or other users post or publish and will not be in any way responsible or liable for Customer Content and/or Customer Data or any failure to review or act upon Customer Content and/or Customer Data. Physitrack may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content and/or Customer Data that in Physitrack’s sole judgment violates these Terms of Service or is otherwise objectionable. To the fullest extent allowed under applicable law, You agree to waive and do waive, any legal or equitable right or remedy You have or may have against Physitrack with respect to Customer Content and/or Customer Data. Except as otherwise expressly set forth in these Terms, Physitrack expressly disclaims any and all liability in connection with Customer Content and/or Customer Data, to the fullest extent allowed under applicable law. If notified by a user or content owner that Customer Content allegedly does not conform to these Terms of Service, Physitrack may investigate the allegation and determine in Physitrack’s sole discretion whether to remove the Customer Content, which Physitrack reserves the right to do at any time and without notice. Physitrack shall have the right to monitor and collect usage data about the use of the Service by You and Authorised Users, and Physitrack may use such usage data to provide and improve the Service, content, Physitrack’s other products and services and to help ensure compliance with these Terms. Customer acknowledges and agrees that all usage data is owned exclusively by Physitrack. You agree that Physitrack may create and use de-identified data generated or derived from Customer Data for Physitrack’s business and marketing purposes, subject to any applicable legal limitations on the use thereof. Such resulting data is not Customer Data.
18.Disclaimer. You shall be solely responsible for any and all information that is provided to Physitrack, including its accuracy and completeness, during any process involving the Service. Under no circumstances whatsoever shall the Service or any part or feature of it be configured in a way that would suggest that it is being used as a medical device, or that is to detect disease or to offer diagnosis or prognosis, or to provide medical condition advice based on user-entered data or offer filters or prioritisation of medical suggestions to the end user. It may only be configured to pass user-entered data onto a healthcare professional such that the healthcare professional is fully responsible for providing medical condition advice; and may make only general recommendations to the user to seek further advice. You acknowledge that all exercises available on the Platform and/or the app are demonstrations only and that You, as the healthcare provider, are responsible for ensuring any exercises and exercise programs created are appropriate for the end user. Physitrack does not accept any liability including any any incidents causing injury.
20.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.
21.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.
22.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 portion 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; (e) fraud, intentional misconduct, criminal acts, gross negligence, or negligence committed by You; and (f) any and all allegations made by Your personnel, affiliates, subcontractors, and/or Authorised Users against us in connection with the Service. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defence 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 defence of that claim.
23.Disclaimers; No Warranties.
23.1. The Service and all materials, products, and content available through the Service 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 the Service, including: (a) any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, 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 the Service, or any materials or content offered through the Service, 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.
23.2. 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 that is not expressly stated in these Terms. You assume all risk for any harm or damage that may result to You 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 use, access, download, or otherwise obtain materials or content through the Service and any associated sites or services, at Your own discretion and risk and that You are solely responsible for any damage to Your property (including Your computer system or mobile device used in connection with the Service), or the loss of data that results from the use of the Service or the download or use of that material or content.
You understand that certain portions of the Service may be subject to FDA or other regulatory compliance requirements in the UK, EU or other jurisdictions and that no software correction can be implemented in a production environment until it has passed our validation process. The timeframe to resolve any issue will depend not only on the issue itself, but also on the time required to perform an appropriate validation. Therefore, the Parties agree that Physitrack (nor any of its affiliated entities) will not be responsible for delays resulting from a software change being assessed or updated in its validation process.
The above paragraphs apply to the fullest extent permitted under applicable law.
24.Limitation of Liability. In no event will the Physitrack entities nor Physitrack´s licensees/ licensors be liable to You (or any affiliates, employees, or authorised users) 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, products, 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 (and all affiliates, employees, and authorised users) 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 the fees paid to Physitrack during the twelve (12) month period preceding the event giving rise to the cause of action. Nothing in these terms shall operate to exclude or limit liability for death or personal injury caused by negligence or fraud, or any other liability which cannot be excluded or limited 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 the risks between the Parties under these terms. 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.
25.Force Majeure. To the fullest extent permitted under applicable law, Physitrack will be excused from performance under these Terms and shall not be liable 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) labour strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorised access to Physitrack’s information technology systems by third parties; or (g) other causes beyond the reasonable control of Physitrack.
26.Governing Law and Venue. These Terms and Your use of the Service are governed by the laws of England and Wales 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 courts of England and Wales, for the purpose of litigating any dispute, and You hereby consent to the personal jurisdiction and venue thereof. We operate the Service from our offices in the United Kingdom and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
27.Custom Development. If You engage us to develop an API and/or customise the Service, the terms of the Custom App Development Terms Schedule 2 (as set out below these terms) shall apply to such development and is incorporated herein by this reference.
29.No Class Actions. To the fullest extent permitted under applicable law, the parties agree that they may bring claims against each other only in its individual capacity and not as a class member in any purported class or representative proceeding, and each party waives the right to trial by jury if one exists.
30.Claims. To the fullest extent permitted under applicable 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 the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
32.Contact Information. The Service is offered by Physitrack. You may contact us by emailing us at firstname.lastname@example.org, or writing to us at 6th Floor, 125 London Wall, London, England, EC2Y 5AS, United Kingdom.
SCHEDULE 1. DATA PROCESSING AGREEMENT
1.1. This Data Processing Agreement is made between Physitrack Plc a company incorporated in England and Wales, with company number 08106661, having its registered address at 6th Floor, 125 London Wall, London, EC2Y 5AS, (“Physitrack”); and ________________ a company incorporated in _________________ having its registered address at
“Data Protection Legislation” shall mean “all applicable data protection and privacy legislation in force from time to time including without limitation the UK GDPR (the retained EU law version of the General Data Protection Regulation ((EU) 2016/679)); the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“EU P-to-C Transfer Clauses” means the EU SCCs sections I, II, III and IV (as applicable) to the extent they reference Module Four (Processor- to - Controller).
“Restricted Transfer” means a transfer of personal data under this DPA from the European Economic Area, Switzerland, or United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of applicable laws of the foregoing territories, to the extent such transfers are subject to such applicable laws.
“Standard Contractual Clauses” means (i) where the EU GDPR applies, the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 available at: https://eur-
lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX%3A32021D0914&locale=en (“EU SCCs”) and (ii) where the UK GDPR applies, the “International Data Transfer Addendum to the EU Commission Standard Contractual Clauses” issued by the Information Commissioner under s.119A(1) of the Data Protection Act 2018 (“UK Addendum”).
1.3. Both You and Physitrack will comply with the applicable requirements of Data Protection Legislation generally.
1.4. You shall retain control of the Customer Personal Data and undertake to Physitrack that You have the legal right to disclose Customer Personal Data to Physitrack and that You have provided the Data Subjects with all appropriate notices and obtained any necessary authorisations. You shall ensure that all individuals who provide written instructions are authorised to do so.
1.5. Without prejudice to the generality of paragraph 1.3 above, Physitrack shall, in relation to Customer Data:
1.5.1. Process Your Personal Data only on Your written instructions. The scope, nature purpose and duration of the processing and Your Personal Data categories and Data Subject types are described in the below table “Data Processing Details”;
1.5.2. keep Your Personal Data confidential and ensure Your personnel are subject to a duty of confidentiality;
1.5.3. comply with Your reasonable instructions with respect to processing Your Personal Data;
1.5.4. Not transfer Your Personal Data outside of the UK unless, in accordance with the
Data Protection Legislation, Physitrack ensures that;
i. the transfer is to a country approved as providing an adequate level of protection for Your Personal Data; or
there are appropriate safeguards in place for the transfer of Your
Personal Data; or
ii. one of the derogations for specific situations applies to the transfer.
1.5.5. assist You at Your own cost in responding to any data subject access request and to
ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
1.5.6. notify You without undue delay and in any event within 48 hours of becoming aware of a Personal Data Breach or communication which relates to Your or Physitrack's compliance with the Data Protection Legislation; and
1.5.7. maintain complete and accurate records and information to demonstrate compliance with this Clause and allow for audits by You or Your designated auditor; and
1.5.8. inform You if, in its opinion, an instruction infringes Data Protection Legislation.
1.6 Physitrack shall ensure that they have in place appropriate technical or organisational measures, to protect against unauthorised or unlawful processing of Your Personal Data and against accidental loss or destruction of, or damage to, Your Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
1.7 Insofar as the provision of the services lead to a Restricted Transfer of Your Personal
Data, You and Physitrack hereby enter into the EU P-to-C Transfer Clauses and the UK Addendum (where applicable) on the basis that the exporter is Physitrack and the importer is You. and on the basis that:
(a) The EU P-to-C Transfer Clauses will be completed as follows:
(i) in clause 7, the optional docking clause will apply;
(ii) in Clause 11, the additional redress mechanism will not apply;
(iii) in Clause 14, the EEA processor will be combining personal data received from the third country-controller with personal data collected by the processor in the EEA;
(iv) Clauses 17 and 18 shall be governed by the jurisdiction of Ireland and disputes shall be resolved before the courts of the jurisdiction of Ireland;
(v) for the purposes of Annex I to the EU P-to-C Transfer Clauses: (a) the categories of data transferred are Company Data (as defined above); and (b) the categories of data subject, subject matter, nature and purpose and duration and frequency of the transfer and retention are described in the below table “Data Processing Details”;
(vi) for the purpose of Annex II the security measures are specified
at https://www.physitrack.com/information-security which are hereby incorporated by reference.
(b) The UK Addendum will apply as follows:
(i)The EU P-to-C Transfer Clauses (as amended as specified by Part 2 of the UK
Addendum) are completed as set out above in Section 1.6 (a); and
(ii)Tables 1 to 3 of the UK Addendum shall be deemed completed with the information set out above in Section 1.6 (a) (as applicable) and table 4 in Part 1 shall be deemed completed by selecting "data exporter".
1.8 Physitrack shall retain personal data in accordance with the terms of its Retention Policy which can be accessed via https://www.physitrack.com/data-retention-policy.
1.9 You undertake to inform Physitrack of any changes to the email address You have provided during the provision of Services.
1.10 You acknowledge and consent generally to the appointment by Physitrack of third parties as sub-processors of Your Personal Data being processed under these Terms of Service. A current list of sub-processors can be found below in the table “Third Party Vendors (Subprocessors) that process data on behalf of Physitrack”.
1.11 Physitrack confirms that a) it shall impose on all sub-processors the same data protection obligations as set out in this clause and that b) it shall remain liable for the actions of its subprocessors.
1.12 Physitrack shall give You notice of the appointment of any new sub-processors and provide You with full details of the processing to be undertaken by the sub-processor, thereby giving You the opportunity to object to such appointment. If Physitrack so notifies You of any changes to sub-processors and You object to such changes, You will be entitled to terminate this Service (without liability for either party, and such termination will be deemed to be a nofault termination) if You have reasonable grounds for objecting to such changes by reason of the changes causing or being likely to cause You to be in breach of the Data Protection Legislation.
1.13 The total aggregate liability of whatever nature, whether in contract, tort or otherwise, of Physitrack for any losses whatsoever and howsoever caused arising from or in any way connected with this Data Processing Agreement shall be subject to the “Limitation of Liability” clause set out in Clause 23 of these Terms. Notwithstanding the foregoing, nothing in this clause will seek to limit either party’s liability which cannot be legally limited, including (but not limited to) liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
1.14 You agree to indemnify, keep indemnified and defend at its own expense Physitrack against all costs, claims, damages or expenses incurred by Physitrack or for which Physitrack may become liable due to any failure by You or Your employees, subcontractors or agents to comply with any of its obligations under these Terms of Service and/or the Data Protection Legislation, in particular any failure by You to comply with the provisions of Clause 1.4 above.
SCHEDULE 2. Custom App Development Terms Schedule (if applicable)
These Terms set forth the Parties’ mutual understanding relating to Vendor’s (Physitrack´s) provision of Custom Development Services to the Customer and shall apply in conjunction with the terms set out in the main Terms of Service, or the body of the Software Service Agreement.
DEFINITIONS. All terms used in this Schedule shall have the meaning specified in the Agreement unless otherwise defined in this Schedule. For the purposes of this Schedule, the following terms are defined as follows.
“Custom Development Services” means the services provided by Vendor in connection with customising the Physitrack API and/or the “look-and-feel” and/or workflows of the Platform, Patient Web and Mobile App, and/or Practitioner Mobile App for Customer, as mutually agreed by the Parties in writing.
“Deliverables” means the Physitrack API, custom Platform, custom Patient Web and Mobile App, and/or custom Practitioner Mobile App conceived, made, or discovered, or generated in connection with the Custom Development Services performed by Vendor. Deliverables do not include Customer’s Pre-Existing IP or Third Party Materials provided by Customer for use in developing the Deliverables.
“Vendor IP” means the works (including websites, applications, databases, interfaces), derivative works, copyrightable notes, records, inventions, improvements, developments, discoveries, and trade secrets, materials and information (including all work flows, plans, notes, software and other documentation, source code, object code, agendas, diagrams, presentations, reports, scripts, logical data flow and analysis of the Platform, Physitrack API, Patient Web and Mobile App, and/or Practitioner Mobile App) that are conceived, made, or discovered, or generated in connection with the Custom Development Services performed by Vendor. Deliverables do not include Customer’s Pre-Existing IP.
“Pre-Existing IP” means any materials, inventions, technology, or content that was developed by a Party prior to Customer engaging Vendor to perform any Custom Development Services under the Agreement.
“Third Party Materials” means any documentation, content, invention, technology, or other materials of any type that are not the sole property of a Party.
2.Obligations of the Parties.
2.1 Vendor Obligations. Under the terms of this Schedule, Vendor agrees to provide Custom Development Services to Customer. Vendor will use personnel and subcontractors with the requisite skills, experience, training, and qualifications to perform the Custom Development Services.
2.2 Customer Obligations.
2.2.1 Customer shall promptly take any actions and provide all information requested by Vendor for Vendor to perform Vendor’s obligations under this Agreement, and any such provided information must be true and accurate. Vendor shall not be liable for any delay or breach of this Schedule or the Agreement caused directly or indirectly by a delay or failure by Customer to take any action or provide all information (or failure to provide accurate information) requested by Vendor.
2.2.2 For the purposes of developing the Patient Web and Mobile App and/or Practitioner Mobile App on Apple iOS, Customer acknowledges that, due to Apple’s rules, Customer will be required to establish an Apple Developer Account (as defined at: https://developer.apple.com/programs/how-it-works/). Once the account is established, Customer will be required to invite Vendor to be the manager/administrator of its Apple Developer Account and/or App Store Connect Account on its behalf, for the purposes of developing, publishing and managing the custom Patient Web and Mobile App and/or custom Practitioner Mobile App in accordance with this Agreement. Customer and not Vendor is responsible for Customer’s compliance with any terms to which Customer has agreed with mobile app store providers, including Apple and Google.
3. Acceptance of Deliverables. A Deliverable will be deemed accepted upon the earlier of (a) Customer’s or Customer’s Authorised Users’ access or use of such Deliverable in a production environment, and (b) ten (10) days after the Deliverables are made available to Customer for use in a production environment. All access and use of the Deliverables in a production environment is permitted only subject to Section 7 and the terms of this Schedule and the Access License under the Agreement or another agreement as mutually agreed by the Parties. Customer’s access and use of Deliverables in the testing environment is limited only to Customer personnel solely for the purposes of testing the Deliverables and for no other purpose and otherwise in accordance with the Agreement.
4. Intellectual Property.
4.1 Ownership of the Deliverables. As between the Parties, Customer agrees that all Deliverables and each portion thereof shall be the sole and exclusive property of Vendor, except Vendor will not own Customer’s Pre-Existing IP or Third Party Materials provided by Customer that are incorporated into the Deliverables. Customer shall not take any action that is inconsistent with Vendor’s sole ownership of Deliverables. For the avoidance of doubt, Customer will and hereby does irrevocably assign to Vendor all right (including any “moral rights”), title and interest in and to the Deliverables and all related Intellectual Property Rights and all rights of action and claims for damages and benefits arising due to past and present infringement of said rights. In no circumstance shall a copyrightable aspect of the Deliverables be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code, as amended). The Parties do not intend Vendor to be a joint author of the Deliverables within the meaning of the U.S. Copyright Act of 1976, as amended, and that in no event will Vendor be deemed a joint author of such Deliverables. Nothing in this Agreement shall be construed to transfer any right, title, or interest to Customer the Deliverables or any Intellectual Property Rights therein. Customer disclaims any rights to the Deliverables or any Intellectual Property Rights therein, and will assert no claim (copyright, patent, or otherwise) to their use, development, and/or production. Customer may not access, use, resell, sell, license, sublicense, distribute, make available, rent, or lease the Deliverables or any Intellectual Property Rights therein for any purpose. Customer agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on the Deliverables. Customer shall undertake no action reasonably expected to interfere with or diminish the Intellectual Property Rights of Vendor or its third-party licensors.
4.2 Further Assurances. During and after the Term, Customer shall, and shall ensure that all Customer personnel will, reasonably assist and cooperate with Vendor in all respects and shall execute documents and, subject to the reasonable availability of Customer and/or Customer personnel, will give testimony and take such further acts reasonably requested by Vendor (all at Vendor’s expense) to enable Vendor to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Deliverables.
4.3 Attorney-in-Fact. In the event that Vendor is unable for any reason, after reasonable effort, to secure Customer’s signature on any document needed in connection with the actions specified in this Schedule, Customer hereby irrevocably designates and appoints Vendor and its duly authorised officers and agents as Customer’s agent and attorney-in-fact, to act for and on its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Schedule with the same legal force and effect as if executed by Customer.
4.4 Third Party Materials and Pre Existing Intellectual Property. Customer will not request that Vendor incorporate into, embody in, or provide with any Deliverable any Third Party Materials or Pre-Existing IP, unless Customer has obtained all third-party rights necessary to provide the license to Vendor as set forth in Section 4.5 of this Schedule below. It is recognized and understood that Pre-Existing IP owned by each Party and existing as of the Effective Date are the separate property of each such Party, and are not affected by this Schedule or the Agreement, and each Party shall not have any claims or rights in such separate inventions or technologies of the other Party.
4.5 License from Customer. Customer hereby grants Vendor a non-exclusive, royalty-free, worldwide, right and license (with the right to sublicense through multiple tiers) to make, have made, sell, use, import, export, execute, reproduce, distribute, modify, adapt, publicly display, publicly perform, make derivative works of, and disclose any Third Party Materials provided by Customer or Customer Pre-Existing IP requested by Customer for the purpose of Vendor providing the Custom Development Services. All use of Customer’s logo and other trademarks in connection with the Deliverables under this Agreement shall inure to the sole benefit of Customer.
4.5 Branding. Vendor may label the Deliverables with Vendor’s logo and other trademarks, such as by including a “Powered by Physitrack” phrase on the Deliverables in Vendor’s sole discretion. All use of Vendor’s logo and other trademarks in connection with the Deliverables under this Agreement shall inure to the sole benefit of Vendor.
5. Maintenance Services. The Maintenance Services provided under the Agreement for its term shall include the general maintenance of the custom Platform, custom Patient Web and Mobile App, custom Practitioner Mobile App, and/or Physitrack API, as applicable.
6. Medical Disclaimer.
6.1 No feature of the Service or any part or feature of it, including but not limited to a practitioner guided auto-intake feature, shall be configured 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; in particular: (i) it must not be configured to provide medical condition advice based on user-entered data and may only be configured to pass user-entered data on to a healthcare provider, including all the questions asked and all the user’s answers, such that the healthcare provider is fully responsible for providing medical condition advice to the user; and (ii) it must not be configured to offer filters or prioritisation of medical suggestions to the user – it may only be configured to make general recommendations to the user to seek further advice or to signpost the user suitable care e.g. “see your GP”, “go to A&E”.
6.2 The Vendor does not warrant or represent the accuracy, completeness or suitability for the Customer’s intended use of any information or content, including without limitation, any medical or healthcare related information, advice or content including exercise programs and instructions (the “Content”), made available via the Services. The Customer is responsible for the use of any Content and should make its own enquiries to check if the Content is accurate, complete and suitable for its intended use.
7. Compliance. The Customer understands that certain portions of the Deliverables may be subject to regulatory compliance requirements and that no software change may be implemented in a production environment until it has passed Vendor’s validation process. The timeframe to resolve will depend not only on the issue itself, but also on the time required to perform an appropriate validation. The Parties agree that Vendor will not be responsible for delays resulting from a software change being assessed or updated in Vendor’s validation process.
8. Custom Development Specifications and Commercial Terms. Any specifics of any custom development services and customisations shall be agreed to by the Parties in separate written agreement. The commercial provisions for the initial development of the custom development services shall be agreed in separate agreement with Physitrack, and without any such agreement the standard Custom App Development Fee of £9,999 and Monthly Maintenance Fee of £999 shall apply. Additional fees will be charged for any customizations or other custom-work following the release of custom Platform, custom Patient Web and Mobile App, custom Practitioner Mobile App, and Physitrack API for Customer’s use. The purchase of any Hosted Services Access License (for exercise prescription, education, outcomes analysis) is governed by written Agreement between Physitrack and the Customer, or else the Standard Terms of Service shall apply to the provision of any services.
Last Updated: August, 2023