myphysician360™ Terms and Conditions
This Terms and Conditions (“Agreement”) is a binding agreement between you (“user” or “you”) and myphysician360™(“myphysician360™”, “we”, “us”, or “our”). This Agreement governs your use of the myphysician360™ mobile application, including all related documentation that we may make available from time to time, and any beta releases that we may make available, and the website and or website application, collectively the “Application”. The Application is licensed, not sold, to you.
If you think you may have a medical emergency, call 911 immediately.
myphysician360™ is a technology platform, owned by or licensed to myphysician360™, designed to empower its users (including “you”) to improve management of their health and wellness through telehealth services (the “Services”) that can be conducted at home, in a pharmacy or in a variety of settings, for a variety of medical issues. myphysician360™ does not provide medical services. All medical services provided through the Application are provided by independent medical providers and use the Application as a way to communicate with you. The Application puts you in touch with a medical provider. The mobile application, associated web sites and web applications, and the content therein is not for medical emergencies or urgent situations and does not make a diagnosis and does not constitute professional medical advice, treatment, or recommendations of any kind but helps you to provide information to a physician or other qualified healthcare provider for certain services. The medical provider is responsible for providing all clinical care to you, which may or may not include a prescription.
Any information or advice received from a qualified health provider comes from them alone, and not from myphysician360™ . Your interactions with the providers via the Service are not intended to take the place of your relationship with your regular health care practitioners. Neither myphysician360™, nor any of its subsidiaries or affiliates or any third party who may promote the Service or provide a link to the Service, shall be liable for any professional advice obtained from a health care provider via the Service or for any other information obtained with the Application. myphysician360™ does not endorse any specific tests, physicians, medications, products or procedures that are recommended by providers that may use myphysician360™ to communicate with you. You acknowledge that your reliance on any healthcare providers or information provided by the providers via the Service is solely at your own risk and you assume full responsibility for all risk associated herewith. myphysician360™ does not make any representations or warranties about the training or skill of any healthcare providers who provide services via the Service.
Even though you may have arrived to the Application through a website or mobile applications operated or controlled by a third party, including by an affiliate of myphysician360™, you understand and agree that this Agreement is entered into between you and myphysician360™. You also understand and agree that the Application is provided solely by myphysician360™, and no other parent, subsidiary or affiliate of myphysician360.
You agree that when you use or enter the Application, you affirmatively consent to conduct business electronically with myphysician360™ and engage in health-oriented activities with health professionals and professional organizations affiliated with myphysician360™, and such processes have the same force and effect as your written signature.
READ THIS AGREEMENT CAREFULLY AS THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION AND CLASS ACTION WAIVER DESCRIBED IN PARAGRAPH Q TO RESOLVE ANY DISPUTES WITH PHYSICIAN 360™.
BY CLICKING THE ‘CREATE AN ACCOUNT’ BUTTON, BY INSTALLING THE PHYSICIAN 360™ SOFTWARE, AND/OR BY USING THE SOFTWARE YOU AGREE AND ACKNOWLEDGE THAT YOU (A) HAVE READ THIS AGREEMENT AND UNDERSTAND ITS TERMS; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT; AND C) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE BINDING ARBITRATION CLAUSE CONTAINED IN PARAGRAPH Q BELOW, AND YOU AGREE TO BE BOUND BY THIS BINDING AGREEMENT BETWEEN YOU AND PHYSICIAN 360™ (THE “AGREEMENT”). IF YOU DO NOT AGREE WITH ANY TERMS OR CONDITIONS OF THIS AGREEMENT, YOU SHOULD REJECT THEM BY NOT CLICKING THE SUBMIT BUTTON AND/OR BY NOT INSTALLING OR USING THIS SOFTWARE.
Furthermore, you agree and acknowledge that your use of and access to myphysician360™’s software is subject to any and all terms and conditions in our privacy policy, which may be updated from time to time in the sole discretion of myphysician360™. Our privacy policy may be viewed here: Privacy Policy
a. License Grant. Subject to the terms of this Agreement, myphysician360™ grants you a limited, non-exclusive, non-sublicensable and nontransferable license to download, install, and use the Application for your personal, non-commercial use on a mobile device owned or otherwise controlled by you. An individual may only have one account per person but may access their account through a shared mobile device. To create an account for an individual other than yourself, you must be that persons Legal Representative. “Legal Representative” shall mean a person’s legal or medical power of attorney. If you are creating an account for another person as their Legal Representative, you consent to the terms of this Agreement.
b. Requirements for Use. You must have compatible mobile devices, access to the Internet, and certain necessary software in order to use the Application. Fees and charges may apply to your use of the mobile services and to the Internet.
c. License Restrictions. You shall not: (i) use the Application for anyone other than yourself unless you are their Legal Representative; (ii) copy the Application, except as expressly permitted by this license; (iii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (iv) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (v) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (vi) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; (vii) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or (viii) access or use the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable local, state or federal law or regulation or is prohibited by this Agreement, (ix) “Jailbreak” your mobile operating system (The Application is intended for use only on a mobile phone that runs an unmodified manufacturer-approved operating system, so using the Application on a mobile phone with a modified operating system may undermine security features that are intended to protect your protected health information from unauthorized or unintended disclosure. You may compromise your protected health information if you use the Application on a mobile phone that has been modified. Use of the Application on a mobile phone with a modified operating system is a material breach of this Agreement.); (x) use or access the Application to create or develop competing products or services or for any other purpose that is to myphysician360™’s detriment or commercial disadvantage; (xi) take any action or use the Application in any manner which could damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner our Application or any content, in whole or in part; (xii) input, upload, transmit, distribute, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, or our Application, or any other system, device, or property; or (xiii) use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
d. Children Under the Age of 18. Except as authorized by the Legal Representative, our Application is not intended for children under 18 years of age. No one under age 18 may provide any personal information to or on the Application. Except as authorized by the Legal Representative, we do not knowingly collect personal information from children under 18. If you are under 18, do not use or provide any information on this Application, make any purchases through the Application, or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 18 without consent from their Legal Representative, we will delete that information. If you believe we might have collected any information from a child under 18, please contact us at info@physician360.co.
e. Intellectual Property. As between myphysician360™ and you, myphysician360™ is the sole and exclusive owner of all right, title and interest in and to the Application and its content, features and functionality (including, without limitation, all information, software, text, displays, images, video, audio, selection, arrangement and look and feel), and all intellectual property rights therein, and any suggestions, ideas or other feedback provided by you. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Application shall be owned solely and exclusively by myphysician360™ or its licensors, including all intellectual property rights therein. You have permission to use the Application solely for your personal and non-commercial use on the condition that you comply with this Agreement. Certain names, logos, and other materials displayed in and through the Application may constitute trademarks, trade names, services marks or logos (“Trademarks”) of myphysician360™ or its affiliates. You are not authorized to use any such Trademarks without the express written permission of myphysician360™ or its affiliates. Ownership of all such Trademarks and the goodwill associated therewith remains with us or our affiliates.
f. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. myphysician360™ and its licensors and service providers, as applicable, reserves and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
g. Updates. myphysician360™ may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that myphysician360™ has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your mobile device is connected to the internet either: (i)the Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
h. Geographic Restrictions. The content and services are offered in certain states in the United States of America. Services are provided for access and use only by persons located in those states. An updated list of states where myphysician360™ is active is located on our website. We make no representation that content or materials or the services associated with the Application are appropriate or available for use in your specific jurisdiction. You acknowledge that you may not be able to access all or some of the content and Services outside of the active states and that access thereto may not be legal by certain persons or other states or countries. If you access or use the Application and the content and services associated therewith from outside of our active states, you are responsible for compliance with local laws. For the avoidance of doubt, accessing the Service from a state not listed on myphysician360™’s list of active states is prohibited, and you confirm that you are physically located in an active state when you request to use the telehealth features of the Service to communicate with myphysician360™. A list of active states can be found here.
i. Consent to Use of Data. You acknowledge that when you download, install, or use the Application, myphysician360™ may use automatic means (including, for example, cookies and web beacons) to collect information about your mobile device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. If you have opted to receive marketing communications from us related to, but not limited to discounts, offers, and news, we may send those via email or text message (message and data rates may apply). You may change your communication preferences by following the instructions or link contained in the applicable communication.
j. Limitations Related to Protected Health Information. Federal law requires certain safeguards to protect the privacy of private health information and information that could be used to identify you (e.g. medical information, date of birth, name, address, etc.). This information is called Protected Health Information (“PHI”). myphysician360™ uses encryption technology to ensure the privacy of the PHI and other identifying information (collectively, the “Data”) you enter on or through the Application as part of the Services provided herein. By agreeing to the terms of this Agreement, you are authorizing myphysician360™ to utilize your PHI, and any other data that you submit in connection with your use of the Application, to collect, use, and disclose your Data in order to provide you with access to and use of the Application, to enhance the treatment provided to you by your healthcare provider and for other appropriate purposes. In addition, myphysician360™ may use your PHI for evaluation of the Services and for quality improvement purposes. myphysician360™’s use and disclosure of any PHI will be conducted in accordance with our Privacy Policy and applicable federal and state regulations.
myphysician360™ may use your Data provided to us through the Application in an aggregated and de-identified form for any research, studies, or for any other lawful purpose. You agree that you consent to such a use of your Data, without any compensation from myphysician360™ owed to you, and that myphysician360™ is not required to provide you with any notice when such Data is used.
k. Security. You are responsible for maintaining the confidentiality of your log-in and password credentials and ensuring that you are accessing this Application through secure systems when transmitting information. You acknowledge that you are responsible for all activity that occurs under your username and password log-in credentials. myphysician360™ is not responsible or liable to you in any way if your information is intercepted by an unauthorized person, whether through public places, at home, business or other locations of access. myphysician360™ is not responsible or liable for any loss or damage caused, or expense incurred, by you as a result of your failure to safeguard your log-in and password credentials. You should immediately notify myphysician360™ if your account username and password has been stolen or otherwise compromised. Accordingly, should you decide to use Application to store or communicate any PHI, you, and not myphysician360™, assume full responsibility for the security of that information.
i. Term and Termination. (i) The term of this Agreement commences when you click ‘Continue’ on your ‘Symptom Checker’ intake form and will continue in effect until terminated by you or myphysician360™ as set forth in this paragraph l.(ii) You may terminate this Agreement by sending an email to info@physician360.co. requesting deactivation of your account. However, all data previously collected will be retained by myphysician360™. (iii) myphysician360™ may terminate this Agreement at any time without notice, including, without limitation, if it ceases to support the Application, which myphysician360™ may do in its sole and absolute discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. (ix) Upon termination: (1) all rights granted to you under this Agreement will also terminate; and (2) you must cease all use of the Application and delete all copies of the Application from your mobile device and account. (x)Termination will not limit any of myphysician360™’s rights or remedies at law or in equity.
m. Links to Third-Party Hyperlinks and Websites. The Application may contain hyperlinks or references to other websites (“Linked Sites”) operated by third parties. The Linked Sites may not be under our control, therefore, we are not responsible for the information, products or services described thereon, or for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. We are providing these Linked Sites to you only as a convenience, and the inclusion of any link does not necessarily imply endorsement of the Linked Site or any association with its operators. Your use of these Linked Sites is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage or loss caused by or in connection with use of or reliance on information contained in or provided to Linked Sites. Only this Agreement will apply to your use of or access to the Application.
n. Content and Services. The Application may provide you with access to Company’s website located at myphysician360.co (the “Website”), which will also include myphysician360.co and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by this Agreement and the Privacy Policy, which are incorporated herein by this reference and Informed Consent. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
o. Payment and Billing. When you submit your request for Services, you agree to pay all fees due. By entering your payment information and submitting your request, you authorize myphysician360™ or its third-party payment processors to charge the amount due. All prices are in U.S. dollars. You understand and agree that you are solely responsible for all charges and applicable fees (including taxes and any fees assessed by your bank) associated with your order, and that any payment to any third-party processor shall include payments to myphysician360™ and affiliated health care providers. By providing a payment method that we accept, you represent and warrant that you are authorized to use such payment method and that you authorize us or our third-party payment processor to charge such payment method for the total amount of your order. We or our third-party payment processor may seek pre-authorization of your payment method prior to your purchase to verify that the payment method is valid and has the necessary funds or credit available to cover the fees for the order. In the event that we or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. In the event that we or our third-party payment processors are unable to charge the full cost of your purchase to the payment method you provide, we may cancel your order. We or our third-party payment processor will collect your payment information and related personal information for its use in processing your payment for the Services that you order. We reserve the right to change prices in our sole discretion at any time; however, the Application will reflect then-current prices.
p. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND, AND PHYSICIAN 360™, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND OF NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PHYSICIAN 360™ PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PHYSICIAN 360™ OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
q. Assumption of Risk. You acknowledge that the Application is designed to provide you with health related information based on your use of the Application, but under no circumstances does the content, data, and/or information supplied to you through the Application constitute medical advice, diagnosis, recommendations, or treatment of any kind by myphysician360™, nor should the Application or any content, data, and/or information provided to you be used for medical emergencies or urgent situations. Always consult with a physician or other qualified health care provider with any questions that you may have related to a medical condition or concern. If you think you may have a medical emergency, call your doctor or 911 immediately. By granting you the right to use the Application and access the Services, myphysician360™ does not assume any obligation or liability related to your health or medical conditions. Under no circumstances shall myphysician360™ be liable for any death or bodily injury that you suffer or that you cause to any third party in connection with your use of the Application or related to any action or inaction you take in connection with your use of the Application.
r. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PHYSICIAN 360™ OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, PRIVACY RELATED CLAIMS, ACTIONS, OR DAMAGES, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR ANY OTHER INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER. THE FOREGOING LIMITATION SHALL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR PHYSICIAN 360™ WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. In no event shall myphysician360™’s total aggregate liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of ten thousand dollars ($10,000.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
s. User Submitted Information. You acknowledge that you have read our Privacy Policy for additional information on myphysician360™’s practices for handling personally identifiable information that you provide to myphysician360™ through your use of, and in connection with, the Application. When you decide to provide information to register for or participate in this Application, you agree that you will provide accurate, complete, and up to date information as requested on the screens that collect information from you. Furthermore, you acknowledge that you, and not myphysician360™, assume full responsibility for the accuracy and security of any information that you enter into the Application and that you will check the accuracy of the e-mail address and other information prior to using any services of myphysician360™. You agree that you will not upload or transmit any communications or content of any type to any public areas that infringe or violate any rights of any party. By submitting communications or content to a public area, you agree that such submission is non-confidential for all purposes. Furthermore, myphysician360™ may include an option that allows users to send any electronic data related to your use of the Application to separate, outside electronic communications that you provide to myphysician360™. You expressly agree that myphysician360™ is not liable for any breach of privacy that may occur after you request your information to be sent via electronic communications to separate, outside electronic communications.
t. Restriction on Export. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
u. Commercial Items. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefore, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
v. Indemnification. You agree to indemnify, defend, and hold myphysician360™ and its affiliates and their respective officers, directors, managers, partners, employees, agents, licensors, and suppliers harmless from and against any and all third-party claims, demands, liabilities, costs or expenses, including attorneys’ fees and costs, arising from or related to: (i) any breach by you of this Agreement, (ii) your use of material or features available on the Application in an unauthorized manner, and/or (iii) a violation by you of any and all applicable laws, rules, or regulations.
w. Waiver of Jury Trials and Binding Arbitration. YOU AND myphysician360™ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. This binding arbitration provision applies to any and all Claims that you have against us, our parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, and against all of their respective employees, agents, or assigns, or that we have against you; it also includes any and all Claims regarding the applicability of this arbitration clause or the validity of the Agreement, in whole or in part. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”) [including, if appropriate, the Procedures for Large, Complex Commercial Disputes and the International Commercial Arbitration Supplementary Procedures and the Supplementary Rules for Class Arbitrations. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our Regulatory Counsel at 300 State St. Unit 92202 Southlake, TX 76092. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of the terms of this Agreement and/or these arbitration provisions in paragraph q and r hereof, including but not limited to any claim that all or any part of the Agreement is void or voidable.
The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and myphysician360™.
The Arbitration shall be held either: (i) at a location in the county that you reside or (ii) at such other location as may be mutually agreed upon by you and myphysician360™; or (iii) at your election, you may choose to have the arbitration conducted by telephone, based on written submissions.
The Arbitrator (i) shall apply internal laws of the State of Texas consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with Texas or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief.
myphysician360™ may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after myphysician360™ has given notice of such modifications and only on a prospective basis for claims arising after the effective date of such notification.
This Arbitration Agreement shall survive: (i) termination or changes in the Agreement, and the relationship between you and us concerning the Agreement; and (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
x. Applicable Law and Venue. By using any myphysician360™ product, application, and/or service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Texas, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and myphysician360™. In the event that the binding arbitration clause in paragraph w above is found to be invalid, you and myphysician360™ agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Dallas County, Texas to resolve any dispute or claim arising from this Agreement and/or any dispute between yourself and myphysician360™.
y. Waiver of Class Action and Jury Trial Waiver.YOU AND PHYSICIAN 360™ AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IT BE BINDING ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. FURTHER, UNLESS BOTH YOU AND PHYSICIAN 360™ AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS WITH YOUR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION YOU AND PHYSICIAN 360™ EACH WAIVE ANY RIGHT TO A JURY TRIAL. YOU AND PHYSICIAN 360™ ALSO BOTH AGREE THAT YOU OR PHYSICIAN 360™ MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
z. Limitation of Time to Bring Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
aa. Notice. We reserve the right to and may provide any notice, including notice regarding a security incident or data breach, to you under this Agreement by: (i) sending a message to the e-mail address you provide (as applicable); (ii) posting to the myphysician360™ website; (iii) providing a notice through the Application; (iv) through major statewide media; and/or (v) telephonic means, including calls and/or text messages, even if sent via automated means including automated dialers, standard text and data messaging rates may apply from you carrier. Notices sent by e-mail will be effective when we send the e-mail, notices we provide by posting will be effective upon posting, and notices we provide through telephonic means will be effective when transmitted or dialed. You consent to receiving electronic communications from myphysician360™ relating to the Application and your account. It is your responsibility to keep your e-mail address and any other contact information you provide to us current.
bb. Changes to this Agreement. myphysician360™ reserves the right, in its sole discretion, and at any time and from time to time, to modify this Agreement. You are free to choose to accept a modified version of this Agreement or not, but accepting this Agreement, as modified, is required for you to continue using the Application. You may have to “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of any modified version of this Agreement, you may be required to terminate your use of the Application. All changes are effective immediately when we post them. Any changes to the dispute resolution provisions set out herein will not apply to any disputes for which the parties have actual notice before the date the change is posted. Your continued use of the Application following the posting of the revised Agreement means that you accept and agree to the changes; if you do not agree then you must delete the Application and no longer use the Application.
cc. Successors and Assigns. myphysician360™ may freely assign and delegate its rights and obligations under this Agreement without notice to you, including but not limited to the right to use the data it collects and maintains, subject to the Privacy Policy. You shall not assign or delegate any of your rights or obligations under this Agreement. This Agreement is binding upon the parties hereto and their respective successors and permitted assigns.
dd. Complete Agreement, Survival, Third-Party Beneficiaries, Waiver, Severability. Complete Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and myphysician360™ with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether oral or written. Survival. All provisions relating to myphysician360™’s proprietary rights, payments of fees, disclaimer of warranties, limitation of liability, arbitration, and any other provisions of the Agreement expressly stated to survive or which by their nature, extend beyond the termination of this Agreement, shall survive the termination of this Agreement. No Third-Party Beneficiaries. Except as otherwise set forth herein, this Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than you. Severability. In the event any term or provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the term or provision will be amended to achieve as closely as possible the effect of the original term or provision and all other provisions of this Agreement will continue in full force and effect. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of myphysician360™.
Last Updated: June 2020
