Phyx Application License and Terms of Use
DO NOT USE THIS SERVICE FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
Effective Date: November 18th, 2019
The betterwithphyx.com website (the “Site”) and any related application(s) (collectively, with the Site, the “Application”) are provided and operated by Phyx, LLC (“Phyx,” “we” or “us”). The Application allows registered users to utilize Phyx’s proprietary software application, online platform, and services that connects patients seeking convenience-based physical therapy services (“Patients”) with qualified physical therapy service providers (“Providers”) (collectively, the “Services”). The Application and Services (i) allow Providers to register to become listed on Phyx’s managed physical therapist directory database accessible by Patients through the Application, (ii) facilitate and match Patients with appropriate Providers based on the Patient’s needs and requirements, (iii) coordinate scheduling and appointments for Patients and Providers, and (iv) manage the payment and transactions between matched Patients and Providers. These terms and conditions of use (the “Terms of Use”) constitute a binding legal agreement between Phyx and you and include the terms which govern your use of the Application and Services (the “Agreement”). We also provide a Privacy Policy that describes the personal information we collect and how we use it.
YOU agree to be bound by the terms of this Agreement BY CLICKING THE "I HAVE READ AND AGREE" ICON DISPLAYED AS PART OF THE REGISTRATION PROCESS. PLEASE READ THE AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU DO NOT AGREE TO THE AGREEMENT, THEN YOU SHOULD NOT CLICK THE ICON AND YOU SHOULD NOT ACCESS AND/OR USE THE APPLICATION.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. This agreement requires the use of binding arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
We reserve the right, at any time, to add to, change, update or modify these Terms of Use, simply by posting such change, update, or modification on the Application and without any other notice to you. Any such change, update, or modification will be effective immediately upon posting on the Application. Changes that impact the provision of the Services will generally be announced and communicated to registered users via email and through the Application. However, it is your responsibility to review the Agreement from time to time to ensure that you continue to agree with them and the content, functionality and output of the Application and Services. Each time you access and/or utilize the Application and Services, you agree to be bound by the then-current Agreement.
LICENSE GRANT:
License to Providers: By registering as a Provider through the Application and in exchange for your consenting to the terms of the Agreement, Phyx hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Application and Services solely to offer, provide and perform physical therapy-related services to Patients through the Application as authorized by these Terms of Use.
License to Patients: In exchange for you consenting to the terms of the Agreement, Phyx hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Application and Services solely for your personal, non-commercial use and as authorized by these Terms of Use .
All rights not expressly granted to you are reserved by Phyx and its licensors.
In addition, the Application and all materials available on it or through the use of the Services are the property of Phyx or its licensors and are protected by copyright, trademark and other intellectual property laws. You may not use the Application, Services or contents thereof in any manner or for any purpose that is inconsistent with the intended use of the Application and Services or that would otherwise constitute infringement of Phyx’s or its licensors’ intellectual property rights. You may download and/or print copies of individual pages of the Application or documents made available to you through the use of the Services for your internal business purposes (for Providers) or for your personal purposes (for Patients). You may not reproduce or distribute any materials obtained from the Application or the Services except as provided above.
Use of the Application:
The Application and Services are intended solely for use as dictated by Phyx, including Providers accessing and using the Application and Services to offer physical therapy-related services to Patients, and Patients accessing and using the Application and Services to receive such services from Providers, or other Application functionality offered now or in the future through Phyx and the Application.
You will be required to register in order to access certain features and Services of the Application. During registration, you may be assigned a user name and password through the Application’s registration process. You may also register and use certain features of the Application and Services without a user name or password by providing certain information (including without limitation, personal information and treatment information) in connection with a request for physical therapy-related services from a Provider. You are responsible for keeping your user name and password and other information provided in connection with your registration confidential. Phyx will not be liable for any loss or damage arising from your failure to keep your account information protected. You will: (i) notify Phyx immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) not impersonate another user or provide false identity information to gain access to or use the Application. Phyx may implement password controls which require you to change your password every so often, and you agree to change your password when notified to do so.
By registering on the Application, you represent and warrant that your information is true and accurate to the best of your knowledge. You agree not to submit false information such as name, email, address, and/or telephone number when registering on the Application. By registering with the Application, you consent to receive periodic communication from Phyx regarding the status of your account or other information associated with your account or the services provided.
You are responsible, at your expense, for procuring and maintaining computer hardware, systems software, internet service, and other items necessary to securely access and use the Application. Phyx reserves the right to modify these requirements from time to time in its sole discretion.
The Application shall not be used by anyone under the age of eighteen (18). By accessing or using the Application or its resources you represent and warrant that you are eighteen (18) years of age or older.
The Application may allow you to submit feedback or comments to Phyx. By posting, uploading, inputting, providing or otherwise submitting feedback or comments to Phyx, you represent and warrant that your submission is truthful and that you own or otherwise control all of the rights to your submission. You hereby grant Phyx an unlimited, world-wide, and royalty free license to use any content included in your feedback or comments submitted to Phyx.
All data entered into your profile during registration, through the use of the Application, or data or information generated by the Application is subject to these Terms of Use and Phyx’s Privacy Policy.
Phyx does not provide home healthcare administrative services to Patients and does not employ the Providers. Accordingly, Phyx assumes no responsibility for the services a Provider provides, nor any act, omission or wrongdoing of any other user of the Application.
For Providers: In order to register on the Application as a Provider, you will be required to provide certain information regarding your certifications, current licensure, education, background, experience and other information. By seeking to register as a Provider on the Application, you represent and warrant that you have all necessary qualifications, certifications, expertise, skill, and requirements and are qualified to provide the physical therapy-related services that you offer through the Application. Phyx will determine, in its sole discretion, whether to approve a request for Provider registration. In the event you are approved as a Provider, you acknowledge and agree that you are solely responsible and liable and bear all risks activities and services you provide in connection with the Application and that Phyx shall not be liable in any way for your conduct and actions in connection with the Application. You should carry personal malpractice and liability insurance with a minimum coverage of $100,000 per incident.
In connection with your use of the Application and Services, you will obtain Patient information from Phyx through the Application or directly from Patients in connection with the provision of physical therapy-related services provided to Patients. You agree to use all such Patient information only in accordance with all applicable laws and regulations and only in connection with your use of the Application and Services and the provision of physical therapy-related services to Patients.
As a Provider, you are responsible for all activity occurring under your account and you represent and warrant that you will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Application including those related to data privacy, international communications and the transmission of personal data, including Protected Health Information of a Patient. “Protected Health Information” shall have the meaning provided in 45 CFR §160.103.
For Patients: You are responsible for all activity occurring under your account and you represent and warrant that you will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Application including those related to data privacy, international communications and the transmission of personal data, including Protected Health Information of a Patient. As part of the Application and Services, you may access a Provider directory database to identify relevant Providers offering physical therapy-related services and select to engage in one or more transactions with a Provider through the Application. While Phyx takes steps to verify the qualifications of all Providers listed on the Application, Phyx does not control the physical therapy-related services provided by Providers and is not responsible or liable for the results of any physical therapy-related services you receive from Providers engaged through the Application. Should you chose to engage a Provider through the Application, you acknowledge that you are doing so at your own risk.
User Content:
Phyx provides the Application and Services to provide a platform and marketplace for physical therapy-related services and to facilitate transactions between Patients and Providers. In connection with the use of the Application and Services, both Providers and Patients will be required to provide certain information, including without limitation, name, title, occupation, date of birth, gender, address, email address, phone number, social security number, and emergency contact information (collectively, “User Content”). You may also be required to provide certain treatment related information in connection with your use of the Application and Services, including without limitation, symptoms, conditions, medications, prior injuries, prior treatment, health history, exercise and physical activities, and other treatment or health-related information relevant to your provision or use of physical therapy-related services (collectively, “Treatment Content”). The Application may also allow for the generation or collection of data from Patients and Providers in connection with the Services and transactions occurring through the Application, including without limitation, time entries, health service records, Patient authorizations and care plans, services performed for Patient, income, taxes owed by Patient or Provider, and other Application generated information (“Usage Data”). The proper and efficient functioning of the Application relies on this User Content, Treatment Content, and Usage Data, and you hereby provide Phyx a license to use the User Content, Treatment Data, and Usage Data to provide and enhance the Services. You grant Phyx a perpetual, irrevocable, and worldwide license to aggregate and anonymize the User Content, Treatment Content, and Usage Data (“Aggregated User Data”) and to sublicense, distribute, sell, use or otherwise commercialize Aggregated User Data for any purpose. Phyx assumes no responsibility regarding the accuracy of the User Content, Treatment Content, Usage Data, or any information that is provided by you through the Application and use of such information is at your own risk. Phyx shall have no property right in or to the User Content, Treatment Content, or Usage Data other than the licenses granted herein.
PAYMENT:
All payments for transactions through the Application will be processed using a third-party payment provider. Phyx does not collect or store your payment information. All payments will be governed by the terms of use of the third-party payment provider, which can be accessed here: https://stripe.com/privacy.
User Conduct:
You represent and warrant that no materials of any kind submitted to or through the Application will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights, or contain libelous, defamatory or otherwise unlawful material.
Provider represents and warrants that it has obtained all necessary consents from Patients to use their mobile phone numbers to send notification SMS texts or emails to a Patient’s mobile phone or email address.
In addition to the above, you represent and warrant you will not:
sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application without Phyx’s express written consent except as otherwise provided herein;
modify or make derivative works based upon the Application;
create Internet "links" to the Application except for access to the home page, or "frame" or "mirror" any content on any other server or wireless or Internet-based device;
reverse engineer or access the Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Application or Services, or (c) copy any ideas, features, functions or graphics of the Application or Services;
you may not share user licenses as each Provider and Patient must register with the Application;
use the Application in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Application;
upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law.
Links to Third Party Applications:
The Application may contain links to other websites (“Third Party Websites”). We do not control or monitor such Third Party Websites and we are not responsible for any Third Party Websites accessed through the Application. Inclusion of, linking to or permitting the use or installation of any Third Party Website does not imply approval or endorsement thereof by us. If you decide to leave the Application and access the Third Party Website, you do so at your own risk and you should be aware that the Agreement no longer applies to your usage of such Third Party Websites.
FEDERAL AND STATE LAWS:
When using the Application, or on the Application, you represent and warrant you will obey and comply with all applicable federal, state and local laws. The Application was created and will be operated from the United States. Any use of the Application that violates any applicable laws will be grounds for discontinuing your rights to access the Application.
Relationship of the Parties:
Phyx and you agree that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales relationship, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf.
Termination:
Phyx may terminate your access to the Application and the Services or reduce the functionality of the Application and Services for any reason, at any time, and in Phyx’s sole discretion, with or without notice. Upon termination of this Agreement, Phyx shall terminate your access to the Application and you shall discontinue all use of the Application. Upon a termination of this Agreement, you shall not be entitled to a refund of any pre-paid fees. You may terminate this Agreement at any time for any reason by providing Phyx sixty (60) days prior notice in writing.
Confidential Information:
Except as otherwise required by law, each party shall keep all Confidential Information of another party in confidence and shall not without the other party’s prior written consent, disclose or otherwise make available, directly or indirectly, any Confidential Information to anyone other than that party’s employees and of their representatives who need to know the same in the performance of each respective obligation hereunder.
“Confidential Information” means all information concerning a disclosing party or its affiliates or any of its respective businesses, assets, products, services, employees, or customers, or of any third party, which is in the possession of the disclosing party or any of its affiliates, that is designated by the disclosing party or any of its affiliates as confidential or proprietary or that is customarily or legally required to be protected from public disclosure, regardless of whether such information is provided to the receiving party orally, in writing or other tangible form, via email or in electronic form, or is obtained through visual observation.
Confidential Information shall not include any information that: (a) was known to the other party prior to execution of this Agreement without an obligation to keep it confidential; (b) was lawfully obtained by the other party from a third party without any obligation of confidentiality; (c) is, at the time of disclosure, in the public knowledge; (d) becomes part of the public knowledge after disclosure by publication or otherwise, except by breach of this Agreement; (e) developed by or for the other party independently and apart from this Agreement and without use of the Confidential Information; or (f) is otherwise knowledge possessed by the other party or its employees as the result of their industry experience or education.
If a party is required to disclose or make available any Confidential Information of the other party pursuant to a valid court order or other legal requirement, the party shall promptly notify the other party of such requirement in writing as soon as commercially reasonable and cooperate and assist the other party in any efforts undertaken by the other party to limit the disclosure. Notwithstanding the foregoing, in all cases of a required disclosure, disclosing party shall limit the information disclosed or made available to the minimum required by law.
Each party acknowledges that improper disclosure of Confidential Information will cause irreparable injury to the aggrieved party, which is not adequately compensable in monetary damages. Therefore, if a receiving party threatens to breach or actually breaches this Agreement, the disclosing party shall be entitled, in addition to all other remedies available to it at law or equity, to the following: (a) equitable relief, including specific performance and injunctive relief to enforce any provision hereof and to restrain the receiving party from using or disclosing, in whole or in part, directly or indirectly, any Confidential Information, without the necessity of proof of actual injury, loss, or damage; and (b) the recovery for damages, losses, and expenses of any nature (including, but not limited to, attorneys’ fees) arising out of, resulting from, or otherwise relating to such breach or threatened breach, subject to the terms and conditions in this Agreement.
MEDICAL DISCLAIMER:
YOU ACKNOWLEDGE THAT THE INFORMATION ON THE SITES IS PROVIDED “AS-IS” FOR GENERAL INFORMATION ONLY. THE APPLICATION, SERVICES, AND THE INFORMATION CONTAINED ON THE APPLICATION IS NOT INTENDED AND SHALL NOT BE CONSTRUED AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT AND IS NOT A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED HEALTH PROFESSIONALS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE APPLICATION. THE INFORMATION AND VIEWS PROVIDED BY PROVIDERS ON THE APPLICATION SHALL NOT BE ATTRIBUTED TO PHYX.
THE APPLICATION IS NOT INTENDED OR DESIGNED TO PROVIDE A RESPONSE IN A MEDICAL EMERGENCY. IF YOU HAVE A MEDICAL EMERGENCY, PLEASE IMMEDIATELY CALL EMERGENCY SERVICES (911) TO GET PROMPT MEDICAL ATTENTION. DO NOT RELY ON THE APPLICATION OR ELECTRONIC COMMUNICATIONS FOR ASSISTANCE IN REGARD TO YOUR EMERGENCY MEDICAL NEEDS.
Disclaimer:
THE APPLICATION AND INFORMATION AND SERVICES OFFERED ON OR THROUGH THE APPLICATION AND ANY REFERENCED THIRD-PARTY SITES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THIS INCLUDES ANY LISTING PROVIDERS ON THE APPLICATION AND ANY THIRD PARTY GOODS OR SERVICE PROVIDER INCLUDED IN THE APPLICATION. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE APPLICATION. ANY THIRD PARTY GOODS OR SERVICE PROVIDER IS SUPPLIED AS A CONVENIENCE TO THE USER AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. PHYX AND ITS LICENSORS AND CONTRACTORS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PHYX AND ITS LICENSORS AND CONTRACTORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APPLICATION OR SERVICES, OR ANY MATERIAL ON THE APPLICATION IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE. PHYX AND ITS LICENSORS AND CONTRACTORS DO NOT WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation on Liability:
PHYX’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PHYX OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APPLICATION OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY PHYX. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. PHYX’S AGGREGATE LIABILITY TO YOU FOR ANY REASON SHALL NOT EXCEED THE FEES YOU HAVE PAID TO PHYX FOR YOUR USE OF THE APPLICATION WITHIN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT OR ACTION ASSERTED AS SUBJECTING PHYX TO LIABILITY.
Indemnity:
You agree to indemnify, defend, and hold harmless Phyx, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Application or Services, your violation of these Terms of Use, or actual or alleged infringement by you or any other user of your account, of any intellectual property or other right of any person or entity. We will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
ARBITRATION:
Any claim or dispute between you and Phyx that arises in whole or in part from the Application or Services shall be decided exclusively through binding, individual arbitration in the State of Wisconsin, U.S.A. You agree that disputes between you and Phyx will be resolved by binding arbitration and you waive your right to participate in class action lawsuits or class-wide arbitration. In the event that binding arbitration is not enforceable, you consent to the exclusive jurisdiction of the State of Wisconsin, U.S.A. for the resolution any disputes. Any cause of action you may have with respect to your use of the Application or Services must be commenced within six (6) months after the claim or cause of action arises.
Governing Law:
These Terms of Use shall be construed in accordance with and governed by the laws of the State of Wisconsin, and you hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Wisconsin for all disputes arising out of or related to the use of the Application or Services.
SURVIVAL:
Your indemnification obligation, and Phyx’s disclaimers and limitation of liability shall survive any termination of this Agreement.
HEADINGS:
Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
Severability; Waiver:
If, for whatever reason, a court of competent jurisdiction finds any term or condition in this Agreement to be unenforceable, all other Terms of Use will remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
Change of Control:
In the event of a change of control of Phyx or the sale of substantially all of Phyx’s assets, all rights of Phyx hereunder shall be transferable without notice to you.
Copyright Infringement:
Phyx has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Application. Our policy is to investigate any allegations of copyright infringement brought to our attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Phyx to review, delete, edit, or disable the material in question, you must provide Phyx with all of the following information:
a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
b. Description of the copyrighted work that you claim has been infringed;
c. The location of the material that you claim is infringing is located on the Application;
d. Your address, telephone number and e-mail address;
e. A statement that your claim of infringement is based on a good faith belief; and
f. A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
For this notification to be effective, you must direct your correspondence to Phyx’s designated agent: info@betterwithphyx.com
Entire Agreement:
This Agreement constitutes the entire agreement between Phyx and you regarding the use of the Application, superseding any prior agreements between Phyx and you relating to your use of the Application.
Contact us:
By Email: info@betterwithphyx.com
By Mail:
Information Request
Phyx, LLC
PO Box 537
Hartland, WI 53029
By Phone: 414-367-6453