www.everflexhealth.com and www.everflexplus.com and any associated wildcard subdomain sites and services (collectively, the “Site”) is an online platform operated and maintained by Movement for Life, Inc., a California corporation, which does business as Everflex Health (referred to herein as “Everflex”, “us”, “our” or “we”).
These Everflex Terms and Conditions of Site Use (the “Terms”) govern access to and use of the Site by Site Visitors and Groups (as those terms are defined below).
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS OF USE AND AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
For purposes of these Terms, the following definitions shall apply:
- “Account” refers to an account created on the Site. Different accounts are available for Groups, Authorized Users and Patients.
- “Alternate Services Agreement” refers to a separate agreement entered into between Everflex and a Group governing the Services and permissible access by Authorized Users and Patients.
- “Authorized User” refers to an individual natural person, whether an employee, business partner, contractor, healthcare provider, or agent of a Group who is registered or permitted by Group to use the Everflex Services subject to these Terms and up to any maximum number of users or uses specified at the time of purchase.
- “Group” or “Groups” refers to the individual(s), entity(ies), or health clinic(s) that purchase Services from Everflex for use by their Authorized Users or Patients.
- “Everflex Services” or the “Services” shall refer to the services available for purchase on the Site or from Everflex, which shall include, but is not limited to, Authorized User and Patient access to the portal for exercise tracking, virtual physical therapy education, and Everflex’s proprietary algorithm focused on the musculoskeletal system. Everflex does not practice medicine, physical therapy, or any other licensed profession through the Site.
- “Patient” or “Patients” refers to the patients, patrons or clientele of Group who may be invited by Group or an Authorized User to view, visit, post, comment, or participate in activities on the Site or in an Account.
- “Site Visitor” or “Site Visitors” shall refer to any visitor of the Site, including Authorized Users, Patients, and the general public.
Groups and Site Visitors may be referred to in these Terms as “you” and “your” as applicable. By using the Site or any Everflex Services, you accept these Terms (whether on behalf of yourself or a legal entity you represent).
1. Binding Agreement.
a. This is a binding agreement. By using the Site, you agree to comply with and abide by these Terms, as they may be amended by Everflex from time to time in our sole discretion. We will post a notice on the Site any time these Terms have been changed or otherwise updated. Modifications are effective immediately. It is your responsibility to review these Terms periodically, and if at any time you find these Terms unacceptable, you must immediately leave the Site and cease all use of the Service and the Site. You agree that we will not be liable to you or to any third party for any modification of the Terms according to this Section.
b. If you are a Group and you or your organization are bound by a separate agreement with Everflex governing the Services (an “Alternate Services Agreement”), then these Terms will apply, if at all, only to use of the Site or any Everflex Services to the extent such use is not already governed by such Alternate Services Agreement. For the avoidance of doubt, all references to the “Site” in these Terms also include the Everflex Services.
2. Privacy.
a. Everflex respects your privacy and permits you to control the treatment of your personal information consistent with applicable law, our Site Privacy Policy, and any applicable Alternate Services Agreement. A complete statement of our current Site Privacy Policy is available here: https://www.everflexhealth.com/privacy-policy.php. The Site Privacy Policy is expressly incorporated into these Terms by this reference.
b. When you are required to open an Account to use or access the Site or Service, you must complete the registration process by providing the complete and accurate information requested on the registration form. You will also be asked to provide a username and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the Account, username, or password of someone else at any time. You agree to notify Everflex immediately on any unauthorized use of your Account, username, or password. Everflex will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Everflex, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your Account or password.
3. Use of Software. Everflex may make certain software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”), available to you from the Site or third-party websites or applications linked to the Site. If you download Software from the Site, the Software is deemed to be licensed to you by Everflex, for your personal, noncommercial, home use only, or if you are a Group as otherwise consistent with your Alternate Services Agreement. Everflex does not transfer either the title or the intellectual property rights to the Software, and Everflex retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Everflex or its licensors and you may not copy or use them in any manner.
4. Proprietary Algorithm and Questionnaire are Not Medical Advice.
a. THE INFORMATION AND EXERCISES PRODUCED THROUGH THE QUESTIONNAIRE AND PROPRIETARY ALGORITHM SHOULD NOT BE CONSIDERED MEDICAL ADVICE OR AN ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR TREATMENT, OR EXERCISE IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
b. The questionnaire and proprietary algorithm section of the Site is designed for educational purposes only and is not intended to replace consultation with a physician or physical therapist. You should not use this section of the Site to diagnose or treat a health problem or disease. The Site may propose various exercises for you based off your responses to the questions. You should consult with a physician prior to beginning any exercise or exercise program. There is a risk of injury involved with any exercise activity, and while Everflex has tried to outline safe and effective exercise regimes, Everflex cannot prevent injuries from occurring. You should be healthy and familiar with the proper form, techniques, and preparation for the exercises you undertake and the equipment you use. Always use safe techniques and protective equipment when engaging in exercise. If you are unfamiliar with the proper and safe techniques and equipment for the exercises you intend to perform, please seek advice and assistance before performing them. If you are in poor health, or are handicap, ask for the opinion of your physician or health care provider and exercise only under qualified supervision. Discontinue exercising if you experience any light headaches, dizziness, shortness of breath, or discomfort and consult your physician or other health care provider.
5. Restrictions on Site Use.
a. Subject to any usage limits (including those contractual service limits and quantities set forth in an Alternate Services Agreement), Group may permit its Authorized Users and Patients to access and use the Everflex Services.
b. Everflex grants Site Visitors a limited, revocable, nonexclusive license to use this Site, and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the Site, reverse engineer or break into the Site, or use materials, products or services in violation of any law.
c. The use of the Site is at the discretion of Everflex and Everflex may terminate your use of this Site at any time, except as may be limited by the Alternate Services Agreement.
d. Patients and Authorized Users may lose access to their Account once they are no longer affiliated with or receiving services from a Group.
e. You may access your information and update or modify the information in accordance with the Site Privacy Policy.
f. Please do not send or direct personal medical questions to Everflex through the Site. Any such information should be directed to your personal physician or other health care provider. A Group should not direct its Authorized Users or Patients to send or direct personal medical questions to Everflex through the Site. With respect to other communications to Everflex or its affiliates, Everflex does not guarantee that it will respond to all inquiries.
g. You may NOT share your password or Account with others or to any third party, and you must notify Everflex immediately of any known or suspected unauthorized use of your Account, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of your password.
6. Security Responsibilities. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Everflex in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
7. Compliance with Intellectual Property Laws. When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, patents, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third-party rights caused by any Content you provide or transmit, or that is provided or transmitted using your User ID. The burden of proving that any Content does not violate any laws or third-party rights rests solely with you.
8. Inappropriate Content. You shall not make the following types of Content available. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content that (a) is libelous, defamatory, obscene, pornographic, abusive, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or (c) advertises or otherwise solicits funds or is a solicitation for goods or services except for a Group advertising its own practice in accordance with the terms and conditions of a valid licensing agreement with Everflex. Everflex reserves the right to terminate your receipt, transmission, or other distribution of any such material using the Service, and, if applicable, to delete any such material from its servers. Everflex intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
9. Copyright Infringement. Everflex has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Everflex has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of Everflex or of a third party, or otherwise violated any intellectual property laws or regulations. Everflex’s policy is to investigate any allegations of copyright infringement brought to its 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 Everflex to delete, edit, or disable the material in question, you must provide Everflex with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Everflex to locate the material; (d) information reasonably sufficient to permit Everflex to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Everflex’s designated agent at:
10. Alleged Violations. Everflex reserves the right to terminate your use of the Service and/or the Site. To ensure that Everflex provides a high-quality experience for you and for other users of the Site and the Service, you agree that Everflex or its representatives may access your Account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third-party rights, or other unauthorized uses of the Site or the Service. Everflex does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Everflex reserves the right to terminate your Account or your access to the Site immediately, with or without notice to you, and without liability to you, if Everflex believes that you have violated any of the Terms, furnished Everflex with false or misleading information, or interfered with use of the Site or the Service by others.
11. NO WARRANTIES; LIMITATION OF LIABILITY.
a. EVERFLEX HEREBY DISCLAIMS ALL WARRANTIES. EVERFLEX IS MAKING THE SITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVERFLEX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EVERFLEX DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
B. EVERFLEX IS NOT RESPONSIBLE OR LIABLE FOR ANY INJURY THAT MAY RESULT FROM IMPROPER USE OF ITS PROGRAMS. EVERFLEX ASSUMES NO LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING FROM ANY USE OF ANY PRODUCT, INFORMATION, IDEA, OR INSTRUCTION CONTAINED IN THE MATERIALS PROVIDED TO YOU. BY USING THIS SITE, YOU AGREE TO ACCEPT ALL RISKS ASSOCIATED WITH THE PROGRAMS DESCRIBED HEREIN AND THAT YOU WILL NOT HOLD EVERFLEX LIABLE OR RESPONSIBLE FOR ANY INJURY THAT MAY OCCUR.
c. EVERFLEX’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EVERFLEX BE LIABLE 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 SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY EVERFLEX. 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.
d. You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms that directly conflict with such laws may not apply to you.
e. This Site may contain typographical mistakes, inaccuracies, or omissions, and some information may not be complete or current. Everflex therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice.
12. Personal Computer Systems. We do not warrant that the Site, its content or any other material accessible from this website including our online services is free from computer viruses or any other defect or error which may affect your software or systems. You should protect your software and systems by installing and implementing your own security and system checks. We are not liable for any loss or damage to your system which occurs in connection with our Site or online services.
13. Third-Party Sites. Everflex has no control over, and no liability for any third-party websites or materials. Everflex works with a number of partners and affiliates whose Internet sites may be linked with the Site. Because neither Everflex nor the Site has control over the content and performance of these partner and affiliate sites, Everflex makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Everflex assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that Everflex makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third-party content, and that, unless expressly provided otherwise, these Terms shall govern your use of any and all third-party content.
14. Indemnity. You agree to indemnify Everflex for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless Everflex, 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 Site, your violation of these Terms, or your infringement, or infringement by any other user of your Account, of any intellectual property or other right of any person or entity. Everflex 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.
15. Wellness Program Compliance. Everflex’s services may be part of a wellness program offered by your employer, health plan, or sponsoring organization, but your employer, health plan, or sponsoring organization is solely responsible for ensuring that their wellness program, and your participation in Everflex’s services, complies with any applicable wellness program law. Your employer, health plan, or sponsoring organization is also responsible for evaluating whether a component of their wellness program is a taxable or non-taxable benefit. If you have any questions about this Section, please contact your employer, health plan, physical therapy provider, or other sponsoring organization directly.
16. Ownership; Copyright. All content included on this Site is and shall continue to be the property of Everflex, or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by you of any such content or any part of the Site is prohibited, except as expressly permitted in this Agreement. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this Site.
17. Governing Law. These Terms shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in San Luis Obispo County, California, in all disputes arising out of or related to the use of the Site or Service.
18. Severability; Waiver. If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms 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.
19. No License. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Everflex or by any third party.
20. California Use. The Site is controlled and operated by Everflex from its offices in the State of California. Everflex makes no representation that any of the materials or the services to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Everflex’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
21. Modifications. Everflex may, in its sole discretion and without prior notice, (a) revise these Terms; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. Everflex shall post any revision to these Terms to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.
22. ALL DISPUTES SUBMITTED TO BINDING ARBITRATION.
a. All disputes arising under or in connection with these Terms shall be submitted to arbitration through Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or successor organization for binding arbitration. Arbitration shall be in San Luis Obispo County, California (or other location as both parties may agree) by a single arbitrator with experience as a Superior Court Judge or at least 5 years arbitrating complex technology contracts. The arbitrator shall be selected by the parties or, if they cannot agree, by JAMS in an impartial manner determined by JAMS. Except as may be otherwise provided herein, the arbitration shall be conducted under the California Arbitration Act, Code of Civil Procedure §§1280 et seq. The Parties shall have the discovery rights provided in Code of Civil Procedure §§1283.05 and 1283.1. The arbitration hearing will be commenced within one hundred eighty (180) days of the filing of this application with JAMS by any party hereto, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing. The arbitrator shall have complete authority to render any and all relief, legal and equitable, appropriate under California law and these Terms. The arbitrator shall award costs of the proceeding, including reasonable attorney’s fees, to the Party determined to have substantially prevailed.
b. An award of arbitration may be confirmed in a court of competent jurisdiction. Additionally, notwithstanding Section 22(a), and subject to the international limitation set forth in Section 22(c) below, either party may seek equitable relief to enforce the provisions of this agreement. Any dispute in accordance with this Section 22(b) shall be subject to the exclusive jurisdiction of the state courts in and for San Luis Obispo County, California (or, if there is federal jurisdiction, the United States District Court for the Central District of California), and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.
c. Notwithstanding the foregoing, regarding international disputes, including whether the claims asserted are arbitrable, such disputes will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator, who shall be a retired judge from the U.S. court system or an attorney with at least ten years of experience in business law. The seat of the arbitration will be California, United States of America. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. International clients expressly agree to this method of dispute resolution, including selection of exclusive venues for such arbitration.
23. ACKNOWLEDGEMENT. BY USING THE SERVICE OR ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.