For the purpose of these Terms and Conditions, the « Provider » is defined as Form and Function Physical Therapy, P.C., having its head office at 12067 Arrow Rte, Rancho Cucamonga, CA 91739, the « Client » as the health professional using the My Therex software or application (the « Software ») and « Users » as all clients or patients of the Client.
A. Product description
The My Therex Software is a mobile application available on Apple and Android devices, allowing a health professional to film a patient while executing an exercise and to make this exercise available online for reference. The first objective of the software is to allow the patient to better execute his or her exercise(s), in order to improve efficiency of the treatment.
THE CLIENT UNDERSTANDS THAT ANY USE OF THIS SOFTWARE, BY ANY PERSON, FOR OTHER MEANS THAN WHAT IS DESCRIBED ABOVE, IS NOT ALLOWED BY THE PROVIDER. BY ACCEPTING THESE TERMS AND CONDITIONS, THE CLIENT REPRESENTS AND WARRANTS THAT HE OR SHE WILL USE THE SOFTWARE AND ACCESS ITS CONTENT FOR ITS INTENDED USE ONLY.
B. Non–Transferable Right
The right to use the Software is personal and for the Client only, and cannot be transferred to any other person or third party.
C. Basic and Premium versions
The Client using the basic version of the Software acknowledges and agrees that this version may contain less functionalities or different ones than on the premium version, that the basic version may contain advertising of any form and/or be limited in time, frequency and quantity regarding its use compared to the premium version. The Provider reserves all rights to modify, add or remove at any time any functionality from the Software, in the basic or premium versions.
Videos from Users made by a Client using the Software will be deleted from the server(s) of the webhosting provider after three (3) months of the date they went online. The client of the user will be invited to maintain their videos on the server by paying a micro monthly subscription.
D. Information provided by the Users
For the purpose of using the Software, Users shall provide a valid email address to be able to access the videos provided by the Client. In order to preserve confidentiality and to ensure consent of the User, the User shall provide personally the email address required and accept the Users’ Terms and Conditions of the Software. Unless otherwise indicated in these Terms and Conditions, this step cannot be done by the Client for the User. The Provider shall not be liable regarding confidentiality of any email address provided and regarding any message or file sent to this email address if it was entered in the Software by the Client or any other third party.
E. Limited Responsibility
The Client agrees to use the Software according to its intended use, in appropriate manners and in accordance with the Provider’s instructions, if any. The Client may not use the Software and upload or access its content online for any illegal or unauthorized purpose, and agrees to comply with all laws, rules and regulations (federal, provincial or state) applicable to the Software use and the content online. Client represents and warrants that all content uploaded by means of this Software does not violate, misappropriate or infringe the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademarks or intellectual property rights. The Client agrees to ensure that User provides the email address required by the Software himself, unless the User is affected by a medical condition preventing him from doing so.
The Provider agrees to take appropriate measures so that the Software can be used adequately by the Client in the course of its professional activities with the Users, this commitment being an obligation of means only. The Client is responsible to verify that any use of the Software is in compliance with all applicable laws, rules or regulations applicable in his jurisdiction. The Client also declares and guarantees that his or her use of the Software is in respect of his professional, ethical and legal obligations regarding confidentiality (be it HIPAA or else). The Provider shall not be held liable for any use of the Software by the Client, be it for the Client, any User or any third party. The Client is solely responsible for the use of the Software and its direct and indirect consequences. Any error, fault, tort or negligence from the Client towards any User or any third party related to the Software use, be it by act or omission, shall never under any circumstance engage the Provider’s responsibility.
THE PROVIDER DOES NOT GUARANTEE THAT USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION. BY USING THE SOFTWARE OR ACCESSING ITS CONTENT, THE CLIENT DECLARES AND GUARANTEES THAT HIS OR HER ACTIVITIES ARE LAWFUL IN EVERY JURISIDCTION WHERE HE OR SHE ACCESSES OR USES THE SOFTWARE OR ITS CONTENT.
The User and Client agree that the Provider is not responsible, and does not endorse, any content posted online by use of the Software and the Provider does not have any obligation to prescreen, monitor, edit or remove any Content. The Client and User will bear all legal responsibilities for that content if it violates these Terms and Conditions.
The Provider shall in no case be held liable of anything related directly or indirectly to the professional relation between the Client and the Users, be it regarding the choice of exercises proposed by the Client to the User, the way to execute said the exercise and their impact, positive or negative, on the User’s health. The Client acknowledges that the Provider has no control on the Client’s work and the Client holds the Provider harmless in this regard.
The performance of the Software, and all information contained on and its content, be it videos or else, downloadable or accessible from the Software and/or the webhosting provider, are provided to the Client and Users on a « As Is » basis, without any warranties of any kind whatsoever, including any implied warranties or warranties of merchantability, legal or else.
No indemnity shall be payable to the Client nor the Users in case of loss of data from the Provider or the webhosting provider related to the Software and the videos of the Users. Provider shall not be responsible for any problems or technical malfunctions of any telephone network or lines, computer on-line systems, computer hardware such as computers, tablets or cellphones, servers, internet access providers, softwares other than My Therex, and any damages arising from the use of the Software.
The Provider reserves its rights, to its sole discretion, to modify, deactivate or interrupt access to the Software and/or to the content of the webhosting provider, be it temporarily or permanently, and this without being held liable to the Client or Users.
The Client understands that any use of the Software is done at his or her own risks.
F. Intellectual Property and Confidentiality
All and any rights of intellectual property regarding the Software are the sole and only property of the Provider. Use of the Software by the Client cannot be interpreted as granting or assigning any rights whatsoever on any trademark, intellectual property or copyright related to the Software or any other product of the Provider or its affiliated companies.
The Client agrees not to use the Software for the account or to the benefit of any third party and agrees not to reproduce, as a whole or in part, one or several functionalities or elements present in the Software on any support and by any proceeding, without Provider’s express consent.
Any update, optimization, add-on or additional feature or functionality to the Software is submitted to the same Terms and Conditions.
The Provider agrees to preserve confidentiality of information provided by Users, such as email addresses, that are transmitted by the Software and agrees not to give any access to this information to anyone, unless required to do so by Law or by a Court order.
The Provider agrees that all content related to the Software, including the Users’ videos, have to be protected, to the minimum, by an SSL encryption protocol during any transfer of said content, be it from the device or computer of the Client to the webhosting provider servers, or from the Provider or webhosting provider servers to the Users’ devices.
G. Communication
By accepting the present Terms and Conditions, The Client expressly agrees to receive electronic communication by email from the Provider regarding the Software and its use.
H. Force Majeure
Neither the Provider nor the Client shall be responsible for delays or default in execution of its obligations provided herein if attributable to a case of Force Majeure.
I. Governing Law and Jurisdiction
These Terms and Conditions are governed by the Laws of the state of California and any dispute or litigation arising from interpretation of these Terms and Conditions shall be decided under the exclusive adjudication of the Courts of the judicial district of California.
J. Other conditions
The Provider reserves the right to change the present Terms and Conditions from time to time. Unless a change is made for a legal or administrative reason, a reasonable advance notice will be provided before the updated Terms and Conditions become effective. Notification of the updated Terms and Conditions can be done by the Provider by posting them on the Software or while accessing the content online, and any use of the Software or accessing content online after the change(s) to the Terms and Conditions is in effect will constitute an agreement to the updated Terms and Conditions.
If any provision of these Terms and Conditions is held to be unlawful, void, or for any reason unforceable by a Court of competent jurisdiction, that provision will be deemed severable from these Terms and Conditions and will not affect the validity and enforceability of any remaining provisions. The Provider’s failure to insist upon or enforce strict performance of any provision of the Terms and Conditions will not constitute a waiver of any provision or right.
The Provider reserves its right to limit the availability of the Software or its access online, in part or completely, to any person, geographic area or jurisdiction, at any time and in its sole discretion.
