Physera, Inc. (“Physera,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our online services (the “Services”), which are made available to you through a variety of platforms, including, but not limited to, https://physera.com/ (the “Website”) and our mobile app, which is accessible through tablets, smart phones, connected televisions, and other devices (the “Physera App”). The Website and the Physera App are collectively referred to as the “Platform.”
In addition, Physera provides Providers access to our proprietary web-based application (the “Clinical Dashboard”), subject to the terms and conditions of a separate agreement between each Provider and Physera (“Clinical Dashboard Agreement”).
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
The Platform and Services are intended to connect you with third party health care professionals, such as physical therapists (“Providers”), so that Providers can provide you a remote musculoskeletal management program, which may include screening, assessment, exercise recommendations and follow-up. Note, however, that Physera does not connect you with medical doctors. You acknowledge and agree that Physera does not itself provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that Physera does not evaluate the need to seek medical attention, through the Platform and the Services. The contents of the Platform and the Services, such as articles, exercise videos, graphics, images, services descriptions, instructions, and other material contained on the Platform and the Services (“Content”) are for informational purposes only. The provision of such Content does not create a doctor-patient relationship, and does not constitute a medical opinion, medical advice, or diagnosis or treatment of any particular condition. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. You should always seek the advice of your Provider, physician or other qualified healthcare provider with any questions you may have regarding a medical condition. If you think you have a medical emergency, call your doctor or 911 immediately.
Through the Platform, we offer a variety of Services, including but not limited to information about Providers and their practices (including but not limited to, their name, education, and expertise). The Services are also designed to connect you with Providers that provide services, including but not limited to musculoskeletal services. If you use the Services to connect with a Provider, then the Services may also provide images and videos of physical therapy and other exercises recommended by the Providers, a real-time monitoring and analysis tool that streamlines provider-user communications, and a Clinical Dashboard that allows Providers to track and monitor their User’s symptoms and progress.
We provide Visitors and Users with access to the Services as described below.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Website. No login is required for Visitors. Visitors can: (i) view all publicly-available Content on the Website; and (ii) e-mail us.
Users. Login is required for all Users. Users can do all things that Visitors can do, and can: (i) create, access, manage, and update their accounts; (ii) schedule a video chat consultation with their Providers; (iii) post comments, reviews, and feedback about their Provider and the physical therapy exercises (collectively, “User Generated Content”); and (iv) access and use the Services.
Providers. Providers can do all things that Visitors can do, and can: (i) create, access, manage, and update their accounts; (ii) create a profile that describes their education, location of clinic(s), expertise and other information related to their practice or services; (iii) post exercises and other content through the Services (collectively, “Provider Generated Content”); and (iv) track and monitor User’s progress through the Clinical Dashboard. Providers’ relationship with Physera is governed by separate agreement between Provider and Physera. As noted above, Providers’ access to and usage of the Clinical Dashboard is governed by the Clinical Dashboard Agreement.
If you are a Provider, any data and information about your patients that you submit through the Clinical Dashboard or that is otherwise made available to you through the Clinical Dashboard (the “Patient Data”) is subject to the terms and conditions set forth in the Clinical Dashboard Agreement. Disclaimer
YOU SHOULD CONSULT YOUR PROVIDER OR DOCTOR BEFORE STARTING ANY EXERCISE AVAILABLE THROUGH THE PLATFORM. IF YOU FEEL ANY PAIN OR OTHER PHYSICAL SYMPTOMS WHEN YOU START YOUR EXERCISE, YOU SHOULD CONTACT YOUR PROVIDER OR DOCTOR IMMEDIATELY.
Please be advised that:
Physera’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
You need to be at least 13 years of age to use the Platform and Services, and the minimum age required depends on your contract for use of the Platform and Services (which may be a contract your employer has entered into with Physera). Please check the minimum age before using the Platform or Services and note that Physera takes no responsibility for use of the Platform and Services by anyone who is below the minimum allowed age. No one under 13 years of age may use the Platform or Services.
If you would like to use the Physera App as a User or Visitor, you will need to download the Physera App by clicking on the personalized download link provided to you by Physera. Upon downloading or accessing the Physera App, you will be required to register by creating an account. During the registration process, you will be asked to provide your name and email address and create a user name and password for your account.
You represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information. You are responsible for the confidentiality of your account. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason.
If you are a User, you agree to pay all applicable fees made known to you during the registration process (“Fees”).
We may use a third party payment vendor (“Third Party Payment Vendor”) to process your payment of the Fees. You warrant and represent that you are the valid owner or an authorized user, of the credit card or payment account that you provide to such Third Party Payment Vendor, and that all information you provide is accurate.
We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.
We retain all right, title and interest in and to the Platform, the Services and all software and other technology relating to the Platform and the Services and all associated intellectual property rights. As between us and you, and subject to your rights, if any, in the User Generated Content or the Provider Generated Content provided through your account as set forth below, we retain all right, title and interest in and to all content available through the Services (the “Physera Content”). The Physera Content may be owned by us or our licensors, and is protected under both United States and foreign laws. Unauthorized use of the Physera Content may violate copyright, trademark, and other intellectual property rights or laws. You have no rights in or to the Physera Content, and you will not use the Physera Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary or legal notices contained in the original Physera Content. You may not sell, transfer, assign, license, sublicense, or modify the Physera Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Physera Content in any way for any public or commercial purpose. The use or posting of the Physera Content outside the platform or on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Physera Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Physera Content.
The trademarks, service marks, and logos of Physera (“Physera Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Physera. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Physera Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Physera Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, copyright, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Physera Content may be retransmitted without our express, written consent for each and every instance.
Users may post and/or create User Generated Content through the Services. We cannot and do not review it all--we are merely acting as a passive conduit for distribution of the User Generated Content to other users of the Services. That said, we may remove User Generated Content that violates the terms of this Agreement, or that is offensive or otherwise unacceptable to us in our sole discretion.
You expressly acknowledge and agree that once you submit your User Generated Content for inclusion into the Services, it will be accessible by others, and that there is no confidentiality or privacy with respect to such User Generated Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT PHYSERA, ARE ENTIRELY RESPONSIBLE FOR ALL OF YOUR USER GENERATED CONTENT THAT YOU CREATE, UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SERVICES.
You retain all copyrights and other intellectual property rights in and to the User Generated Content. You do, however, hereby grant us a non-exclusive, royalty-free, sublicensable, transferable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, reproduce, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit and create derivative works based on your User Generated Content as reasonably necessary to provide the Services.
If you submit User Generated Content to us, each such submission constitutes a representation and warranty to Physera that such User Generated Content is your original creation (or that you otherwise have the right to provide the User Generated Content), that you have the rights necessary to grant the license to the User Generated Content under the prior paragraph, and that it and its use by Physera and our content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the terms of this Agreement.
Providers may post and/or create content through the Services, including but not limited to, exercise videos or images (collectively, the “Provider Generated Content”). We cannot and do not review it all. That said, we may remove Provider Generated Content that violates the terms of this Agreement, or that is offensive or otherwise unacceptable to us in our sole discretion.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use and be the owner of any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you. If you believe any content supplied by a Provider violates your copyright, you may contact us at [email protected]. You must include your contact information and provide proof of your ownership of the copyright for us to review any such claim.
NONE OF PHYSERA, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “PHYSERA PARTIES”) ENDORSE ANY CONTENT PROVIDED THROUGH THE PLATFORM AND THE SERVICES, ANY USER, PROVIDER, USER GENERATED CONTENT, PROVIDER GENERATED CONTENT AND/OR ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY USER OR PROVIDER THROUGH THE PLATFORM AND THE SERVICES. YOU ACKNOWLEDGE THAT THE PLATFORM MERELY ACTS AS A VENUE THAT ALLOWS USERS TO COMMUNICATE WITH THEIR PROVIDERS. NONE OF THE PHYSERA PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO, ANY TRANSACTION, COMMUNICATION OR INTERACTION BETWEEN YOU AND YOUR PROVIDER OR FOR ANY RESULTS CAUSED BY USING THE PLATFORM AND THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEATH, BODILY INJURY OR HEALTH PROBLEMS YOU MAY SUFFER. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING SENTENCE DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.
THE CONTENT PROVIDED ON THE PLATFORM, THE SERVICES AND ANY OTHER COMMUNICATIONS FROM OR PROVIDED THROUGH THE PLATFORM AND THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU THINK YOU OR SOMEONE ELSE MAY HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE EMERGENCY ROOM IMMEDIATELY.
YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM, AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL USER GENERATED CONTENT AND PROVIDER GENERATED CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED "AS IS," "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NONE OF THE PHYSERA PARTIES MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, OR QUALITY OF WORK OF THE PROVIDERS, ANY THIRD-PARTY CONTRIBUTORS, OR CONTENT THEY PROVIDE THROUGH THE PLATFORM AND THE SERVICES. NONE OF THE PHYSERA PARTIES MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE ACCURACY AND COMPLETENESS OF THE CONTENT AS IT RELATES TO MEDICAL HISTORY OR MEDICAL RECORDS.
IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PLATFORM, INCLUDING ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS,WE SHALL NOT BE LIABLE FOR: (I) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (II) ANY LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION ACCESS AND USE THE SERVICES OR THE CONTENT, IN ALL CASES REGARDLESS OF LEGAL THEORY AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (III) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE PLATFORM AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS, INCLUDING WITH RESPECT TO INFORMATION ABOUT THE PROVIDERS AND/OR THE PHYSICAL THERAPY EXERCISE. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, PRICING, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE PLATFORM AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AND THE SERVICES AT ANY TIME WITHOUT NOTICE.
WE MAY PROVIDE INFORMATION OBTAINED FROM THIRD PARTY CONTRIBUTORS AND LINKS TO THIRD PARTY WEBSITES FOR INFORMATIONAL PURPOSES ONLY. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY SUCH INFORMATION OR THIRD PARTY WEBSITES.
The Platform and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold harmless the Physera Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Physera Content, the Services, or the Platform; (iii) any User Generated Content provided through your accounts; (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right, or your violation of any law, rule, regulation or professional codes of conduct or similar standards applicable to your profession and/or practice; or (v) any claims brought against any Physera Party by a Provider, a User or any other third party as a result of your acts or omissions.
The Platform and the Services are based in the United States, and are intended to be used only by residents of the United States within the United States. We make no claims concerning whether the Platform, the Services, the Physera Content, the Content, the Provider Generated Content or the User Generated Content may be downloaded, viewed, or be appropriate for use outside of the United States. This Agreement does not authorize you to access the Platform, the Services, the Physera Content, the Content, the Provider Generated Content or the User Generated Content from outside of the United States. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform and/or the Services at any time without prior notice or liability.
Physera respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any notification of claimed infringement, which may be given under that Act is as follows:
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including: (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
In the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Physera from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Physera’s proprietary interests.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement is governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws provisions. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications with Us,” “Provider Warranties,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.