Last Updated: August 22, 2016
Health Coda, Inc. (“Health Coda,” “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.”
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.
You acknowledge and agree that Health Coda does not provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that Health Coda 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, information from our third party contributors, services descriptions, instructions, and other material contained on the Platform and the Services (“Content”) are for informational purposes only. Although such Content may be provided by individuals in the medical profession (including Providers), 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, an online searchable directory listing of Providers, information about the Providers and their practice (including but not limited to, their name, education, location of their clinic(s), and expertise), images and videos of physical therapy exercises recommended by the Providers, a real-time monitoring and analysis tool that streamlines provider-user communications, and a web-based application that allows Providers to track and monitor their User’s symptoms and progress (“Dashboard”).
We provide Visitors, Users, and Providers 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) post comments, reviews, and feedback about their Provider and the physical therapy exercises (collectively, “User Generated Content”); and (iii) access and use the Services.
Providers. Login is required for all 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; (iii) post exercises and other content through the Services (collectively, “Provider Generated Content”); and (iv) track and monitor User’s progress through the Dashboard.
Subject to the terms and conditions of this Agreement, Health Coda grants Provider during the term of this Agreement a non-transferable, non-exclusive license, without the right to sublicense (unless Health Coda has provided prior written consent), to access and use the Dashboard for Provider’s internal business purposes. Provider will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Dashboard; or (ii) introduce into the Dashboard any virus, worm, “black door,” Trojan Horse, or similar harmful code. If Provider violates this section, Health Coda reserves the right in its sole discretion to immediately deny Provider access to the Dashboard, or any portion of thereof, without notice. Health Coda reserves the right to change the availability of any feature, function, or content relating to the Dashboard, at any time, without notice or liability to Provider.
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:
Health Coda’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:
The Platform is only available for individuals aged 18 years or older. If you are under 18 years of age, please do not use the Platform.
If you would like to use the Website, you will have to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating the account, you must provide true, accurate, current, and complete information. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifier. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason.
If you would like to use the Physera App, you will need to download the Physera App from the Apple App Store or any other third party app store using your app store credentials. You are responsible for the confidentiality of your account.
We do not currently charge a fee to use our Services. However, we reserve the right 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. As between us and you, and subject to your rights 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 “Health Coda Content”). The Health Coda Content may be owned by us or our licensors, and is protected under both United States and foreign laws. Unauthorized use of the Health Coda Content may violate copyright, trademark, and other laws. You have no rights in or to the Health Coda Content, and you will not use the Health Coda Content except as permitted under this Agreement and the functionality of the Services. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Health Coda Content. You may not sell, transfer, assign, license, sublicense, or modify the Health Coda Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Health Coda Content in any way for any public or commercial purpose. The use or posting of the Health Coda Content 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 Health Coda Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Health Coda Content.
The trademarks, service marks, and logos of Health Coda (“Health Coda Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Health Coda. 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 Health Coda 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 Health Coda Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, 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 Health Coda 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 HEALTH CODA, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER GENERATED CONTENT THAT YOU 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, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit 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 Health Coda 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 Health Coda and its 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--we are merely acting as a passive conduit for distribution of the Provider Generated Content to other users of the Services. 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.
You expressly acknowledge and agree that once you submit your Provider 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 Provider Generated Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT HEALTH CODA, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR PROVIDER GENERATED CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SERVICES.
You retain all copyrights and other intellectual property rights in and to the Provider 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, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit your Provider Generated Content as reasonably necessary to provide the Services.
If you submit Provider Generated Content to us, each such submission constitutes a representation and warranty to Health Coda that such Provider Generated Content is your original creation (or that you otherwise have the right to provide the Provider Generated Content), that you have the rights necessary to grant the license to the Provider Generated Content under the prior paragraph, and that it and its use by Health Coda and its 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.
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 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.
In addition to any other warranties set forth herein, Provider hereby represents and warrants that: (i) any and all biographical or professional information provided by Provider during the registration process is truthful and accurate; (ii) neither any Provider Generated Content nor your provision thereof will conflict with or violation any applicable law, rule, or regulation, or any guidelines, rules or regulations required of professionals in your profession; (iii) Provider’s conduct on the Platform will at all times be professional and workmanlike; and (iv) Provider has the necessary qualifications, registrations, and licenses required by the applicable law and Provider is in good standing and qualified to provide the Provider’s services.
NONE OF HEALTH CODA, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “HEALTH CODA 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 HEALTH CODA 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 IN ANY OTHER COMMUNICATIONS FROM OR PROVIDED THROUGH THE PLATFORM AND THE SERVICES BY HEALTH CODA IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU THINK YOU OR YOUR FAMILY MEMBER(S) 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 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 HEALTH CODA 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 HEALTH CODA 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 WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
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.
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 Health Coda 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 Health Coda Content, the Services, or the Platform; (iii) any User Generated Content provided through your accounts; (iv) any Provider Generated Content provided through your accounts; (v) your violation of any third-party right, including without limitation any copyright, trademark, 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 (vi) any claims brought against any Health Coda 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. We make no claims concerning whether the Platform, the Services, the Health Coda 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. If you access the Platform, the Services, the Health Coda Content, the Content, the Provider Generated Content or the User Generated Content from outside of the United States, you do so at your own risk. 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.
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 Health Coda from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Health Coda’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 California, 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.