Terms of Use

PHDX® mPRO^sm TERMS AND CONDITIONS OF USE
This policy is updated and effective as of December 2012

PhDx® mPRO^sm offers a variety of websites, mobile applications, health outcomes calculators, select promotional offers, and other services and applications (collectively, the "Services") related to spine health. These Terms and Conditions of Use (“Terms”) govern your use of the Services.

SERVICES ARE NOT MEDICAL ADVICE

YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE:

THE SERVICES AND ANY CONTENT INCLUDED IN THE SERVICES DO NOT CONSTITUTE MEDICAL ADVICE.

IF YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, YOU SHOULD CONTACT YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. YOU SHOULD ALSO CONTACT YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER IF YOU HAVE ANY QUESTIONS REGARDING THE USE OF THE SERVICES OR ANY CONTENT OR INFORMATION INCLUDED IN THE SERVICES RELATED TO YOUR HEALTH BEFORE YOUR USE OF THE SERVICES OR SUCH CONTENT.

ANY CONTENT AND INFORMATION INCLUDED IN THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY PHDX OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF A PHYSICIAN OR OTHER MEDICAL PROFESSIONAL, (B) A VISIT, CALL OR CONSULTATION WITH A PHYSICIAN OR OTHER MEDICAL PROFESSIONAL, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL.

YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL ADVICE BECAUSE OF YOUR USE OF THE SERVICES OR ANY CONTENT OR INFORMATION INCLUDED IN THE SERVICES. DO NOT EMPLOY THE SERVICES OR ANY CONTENT OF INFORMATION INCLUDED IN THE SERVICE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE USE OF THE SERVICES AND THE PROVISION OF THE CONTENT AND INFORMATION INCLUDED IN THE SERVICES DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPTIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND PHDX.

1. General

The Services are offered through PhDx® mPRO^sm and its affiliated website PhDx.com/mPRO (the “Website”) and the associated mobile applications (the “Mobile Applications”). In these Terms, PhDx Systems, Inc. is referred to as “PhDx,” “PhDx® mPRO^sm, ” “we,” “us,” or “our.” A person that accesses and uses the Services is referred to as “you” or a “user.” PhDx® mPRO^sm offers the Services to allow you to record and maintain information regarding pain and function as it relates to spine health. The Services are made available to you by PhDx Systems, Inc. (“PhDx”), subject to these Terms, including those set forth in the PhDx Privacy Policy http://www.PhDx.com/mPRO/privacypolicy. By accessing, using, entering data into, or downloading any of the Services, you agree to follow and be bound by these Terms, which may be updated by PhDx from time to time without notice to you. You can review the most current version of the Terms at any time at http://www.PhDx.com/mPRO/termsofuse. PhDx and its third party providers may make improvements and/or changes in the Services at any time without notice. Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages at the Website.

The Services are not intended for and are not designed for use by children under 13 years of age. If you are age 13 or older but under the age of 18, then you agree to review these Terms with your parent(s) or guardian(s) to ensure that both you and your parent(s) or guardian(s) understand and agree to these Terms. As a parent or guardian consenting to these Terms for the benefit of a child over 13, you agree and accept full responsibility for your child’s use of PhDx® mPRO^sm and the Services.

PHDX RESERVES THE RIGHT AT ANY TIME AND FROM TIME TO TIME TO MODIFY OR DISCONTINUE, TEMPORARILY OR PEMANENTLY, THE SERVICES OR ANY PORTION THEREOF WITH OR WITHOUT NOTICE. YOU AGREE THAT PHDX SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES OR ANY PORTION THEREOF.

If you do not agree with these Terms, please do not use the Services. BY CONTINUING TO USE THE SERVICES, YOU ARE INDICATING YOUR AGREEMENT TO THESE TERMS AND ALL REVISIONS THEREOF.

BY USING PHDX® mPRO^sm OR THE SERVICES, YOU THEREFORE AGREE, REPRESENT AND WARRANT THAT:

YOU ARE 13 YEARS OF AGE OR OLDER BUT UNDER THE AGE OF 18 AND YOU HAVE REVIEWED AND CONSENTED TO THESE TERMS WITH YOUR PARENTS; OR

YOU ARE 18 YEARS OF AGE OR OLDER AND HAVE CONSENTED TO AND AGREED TO THESE TERMS.

FURTHER, YOU ACKNOWLEDGE AND AGREE THAT PHDX HAS OFFERED THE SERVICES IN RELIANCE UPON THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, RELEASES AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS. YOU ALSO ACKNOWLEDGE AND AGREE THAT THESE WARRANTY DISCLAIMERS, RELEASES AND LIMITATIONS OF LIABILITY RELFECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PHDX, AND THAT THESE WARRANTY DISCLAIMERS, RELEASES AND LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PHDX. PHDX WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE WARRANTY DISCLAIMERS, RELEASES AND LIMITATIONS OF LIABILITY.

2. Privacy Policy

PhDx’s Privacy Policy (http://www.PhDx.com/mPRO/privacypolicy) is hereby incorporated into these Terms by reference. Please review the Privacy Policy carefully for disclosures relating to PhDx’s security protocols and its collection, uses, and disclosures of your personal information and location information. Click here to review the PhDx Privacy Policy (http://www.PhDx.com/mPRO/privacypolicy).

3. Additional Posted Guidelines

PhDx may require you to agree to additional rules, policies, guidelines or other conditions (collectively “Guidelines”) in order to use particular features, to participate in certain promotions available through PhDx, or to receive and/or use some Services that PhDx may offer from time to time. In such cases you may be required to expressly consent to additional terms set forth in applicable Guidelines. For instance, you might be obligated to check a box or clicking on a button marked “I agree.” This type of agreement is knows as a “click-through” agreement. If any of the terms of a click-through agreement are different than these Terms, the terms of the click-through agreement will supplement or amend these Terms, but only with respect to the matters governed by the click-through agreement.

4. Modification of these Terms

PhDx reserves the right, at its discretion, to change, modify, add, or remove portions of the Terms or any Guidelines at any time. By your agreement to these Terms and use of the Services, you obligate yourself to periodically check these Terms, the Privacy Policy and all Guidelines for any changes. Your continued use of the Services after the posting of any modifications or changes to the Terms, Privacy Policy or Guidelines constitutes your binding acceptance of such changes. Additional and/or different terms and conditions of use may apply to services or products provided through one or more of PhDx’s partners, advertisers, or business associates, and you should refer to those before accessing, purchasing, using or subscribing to such services or products.

5. Ownership and Proprietary Rights

The Services are owned and operated by PhDx. You acknowledge and agree that the Services, any software used in connection with the Services, and any PhDx Content (as that term is defined below) offered as part of the Services contain proprietary and confidential information of PhDx or third parties that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by PhDx, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or any Content offered as part of the Services (other than your own User Content as that term is defined below), in whole or in part.

PhDx grants you a personal, non-transferable, non-exclusive, and revocable right and license to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services. You agree not to access the Services by any means other than through the interface that is provided by PhDx for use is accessing the Services.

The terms “PhDx,” “PhDx® mPRO^sm,” along with the associated logos and names of the specific Services are the exclusive trademarks or service marks of, and are owned by PhDx, and you may not use or display such trademarks in any manner without PhDx’s prior written permission. Any third party trademarks or service marks displayed via the Services are the property of their respective owners. PhDx reserves all rights not expressly granted hereunder.

6. Account Information

To use the Services, you must create a PhDx® mPRO^sm account (“Account”). You agree to: (a) provide true, accurate, current and complete information about yourself as prompted during the Account creation/registration process and (b) maintain and promptly update the information to keep it accurate and current. You agree that PhDx may use such information to provide the Services. If you provide any information that is inaccurate or not current or PhDx has reasonable grounds to suspect that such information is inaccurate or not current, PhDx has the right to suspend or terminate your Account and refuse any and all current or future use of the Services. In consideration of your use of the Services, you represent that you are of legal age to form a binding contract or if over the age of 13 years but not of legal age, that your parent(s) or guardian(s) agree to these Terms on your behalf.

7. Password

When you create an Account, you will be asked to provide a password. Because you will be responsible for all activities that generate from your Account, and you can only access your account upon the transmission of your password, you should keep your password strictly confidential at all times. We endeavor to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your Account, your User Content or the personal information or location information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its Content. You agree to immediately notify PhDx of any unauthorized use or your Account or password, or any other breach of security, and to accept all risks of unauthorized access to information you provide to PhDx. PhDx reserves the right to suspend your Account and/or require that you alter your password if we believe for any reason that your password is no longer secure. YOU MAY NOT SHARE YOUR PHDX ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON.

8. PhDx Usage Rules
Prohibited Conduct and Uses

YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT, AND WARRANT THAT YOU WILL NOT:

1. use the Services or any personal information or location information displayed on or in connection with the Services to “stalk,” harass, abuse, defame, threaten or defraud other users, or collect, attempt to collect, or store location information or personal information about other users;
2. use PhDx or the Services if you are under the age of 13 years old;
3. include offensive or pornographic materials on or in your User Content;
4. use PhDx or the Services for any commercial or non-private use, it being understood that PhDx and the Services are to be employed for personal, non-commercial use only;
5. fail to deliver payment, if any, required for the Services;
6. use PhDx or the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
7. make unsolicited offers, advertisements, proposals, or send junk mail, to other users of the Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
8. impersonate any person or entity, including but not limited to a PhDx representative, or falsely claim an affiliation with any person or entity, or access the PhDx Accounts of other users;
9. share PhDx issued passwords or any other means of access to a mobile device while any Service is running and accessible with any third party or encourage any other user(s) to do so;
10. misrepresent the source, identity or Content of information transmitted via the Services;
11. . remove, circumvent, disable, damage or otherwise interfere with : (i) the security-related features of PhDx or the Services; (ii) the features of PhDx and the Services that prevent or restrict use or copying of any Content accessible through the Services; or (iii) the features of PhDx and the Services that enforce limitations on use of the Services;
12. intentionally interfere with, or damage the operation of PhDx or the Services, or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
13. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
14. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
15. upload, post, email, transmit, or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any third party;
16. attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to PhDx, or any part of it, through hacking, password mining, or any other means to interfere with, or attempt to interfere with the proper working of PhDx or any of the Services;
17. use any robot, spider, scraper or other automated means to access PhDx or the Services for any purpose without PhDx express written permission or bypass PhDx robot exclusion headers or other measures we may use to prevent or restrict access to PhDx or the Services or modify PhDx or the Services in any manner or form, or use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to PhDx or the Service; or
18. sell or transfer or allow another person to access your Account or password; or
19. use the Services to harm minors in any way.

9. Monitoring of Usage

PHDX RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR YOUR ACCOUNT AND WEB OR MOBILE BASED ACTIVITIES RELATED TO THE SERVICES.

10. Third Party Content

Certain content displayed on or linked to Websites or Mobile Applications, namely is developed by individuals or merchants over who PhDx exercises no direct control (“Third Party Content”). PhDx does not endorse any Third Party Content, or the information, material products, or services associated with Third Party Content. Furthermore, some users may find some Third Party Content to be objectionable, inappropriate, or offensive. PhDx therefore does not make any express or implied warranties with regard to the nature of the information, material, products, or services that are displayed or linked by any Third Party Content. In addition, your contacts or business dealings with, or participation in the promotions of individuals or merchants found on, or linked by any Third Party Content exist solely and operate independently as between you and such individuals or merchants. You therefore agree that PhDx shall not be responsible for, or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the placement of, or linkage to such Third Party Content.

Third Party Content is not medical advice.

11. User Content

Information (other than personal information and location information which are expressly covered and governed by the Privacy Policy) that you voluntarily provide to PhDx expressly for viewing by other users, including data, text, files, text, software, sound, photographs, graphics, video, messages, and all other material that you transmit to, or supply to PhDx is referred to as “User Content.” User Content, whether publicly posted or privately transmitted, available in connection with the Services is the sole responsibility of the person from whom such User Content originated. This means that you, and not PhDx, are entirely responsible for all User Content that you upload post, e-mail, transmit or otherwise make available via the Services.

PhDx does not control or monitor the User Content posted by others and, as such, does not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the Services, you may be exposed to User Content that is offensive, indecent, or objectionable. Under no circumstances will PhDx be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Services.

You acknowledge, consent and agree that PhDx may access, preserve and disclose your User Content if required to do so by law or in good faith belief that such access preservation or disclosure is reasonable necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights property or personal safety of PhDx, its users and the public.

By uploading, posting, emailing, transmitting, or otherwise making available User Content via the Services You expressly warrant, understand and agree that you are solely responsible for the transmission, accuracy, completeness, and publication of that User Content; you control all of the rights to that User Content and that it neither does nor will infringe or violate the rights of any third party; and PhDx bears no responsibility, legal, or otherwise, for that User Content.

User Content is not medical advice.

Prohibited User Content

You may not post User Content on PhDx or through the Services:

1. is patently offensive and/or promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
2. harasses or advocates harassment of another person;
3. exploits people in a sexual or violent manner;
4. contains nudity, violence or offensive subject matter;
5. provides any telephone numbers, street addresses, last names, or email addresses of anyone except you;
6. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
7. violates any intellectual property or other proprietary right of any third party, including User Content that promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or proving pirated music or links to pirated music files;
8. involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming.” or “spamming;”
9. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
10. solicits passwords or personal indentifying information for commercial or unlawful purposes from other users;
11. involves commercial activities and/or sales without PhDx’s prior written consent, such as contests, sweepstakes, barter, advertising or pyramid schemes; or,
12. includes a photograph of another person posted without that person’s consent or, in the case of children under the age of 18, parental consent, or otherwise constitutes an invasion of an individual’s privacy or infringement of publicity rights; or contains a virus or other harmful component.

Ownership Rights in User Content

PhDx does not claim ownership of User Content. However, with respect to User Content you submit or make available in connection with PhDx or Services, you grant PhDx a worldwide, perpetual, irrevocable, royalty-free and non-exclusive license, as applicable, to use, copy, distribute, reproduce, modify, adapt, create derivative works from, publicly perform and publicly display, incorporate, and otherwise exploit such User Content for any purpose, commercial, advertising, or otherwise, or in connection with PhDx or the Services or the promotion thereof. Further, you agree that any “moral rights” in your User Content have been waived.

PhDx may provide you with the option of making certain User Content that you submit to PhDx as “Private” or available only to select Users of the Services. If, upon submission of User Content, you initially elect to mark such User Content as Private or available for a limited group of Users, PhDx will maintain the privacy of such User Content in accordance with your election. However, if you do not elect to mark your User Content as Private or available for a limited group of Users, or later change such designation to allow such User Content to be made generally available, PhDx cannot and does not guarantee the privacy of such User Content.

PhDx Review of User Content

You acknowledge that PhDx may or may not pre-screen or monitor User Content, but that PhDx and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, monitor, refuse or remove any User Content that is available via the Services. By consenting to these Terms, you understand and acknowledge that when you access or otherwise use PhDx or the Services, you may be exposed to User Content from a variety of sources, and that PhDx is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. Further, you understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against PhDx with respect thereto. Without limiting the foregoing, PhDx and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associates with, the use of any User Content available in connection with the Services, including any reliance on the accuracy, completeness or usefulness of such User Content.

12. PhDx Content

PhDx and the Services contain trademarks, trade names, trade dress, service marks, and may include content provided by PhDx such as copyrighted material concerning spine health and materials and information owned by PhDx and others (collectively “PhDx Content”).

PhDx Content is not medical advice.

Ownership of PhDx Content

PhDx is the sole owner of all PhDx Content including all copyrights, trademarks, trade dress, service marks, and other intellectual property rights. You may not download, copy or save any PhDx Content or any portion of it, for any purpose, except as expressly permitted by such Services (e.g. printed reports) or as provided for in the specific Guidelines applicable to those Services, and in the limited cases where you need to print a copy of individual screen appearing as part of the Services solely for personal use or records, provided that any logos, marks, or other legends that appear on the copied screens remain and are not removed from the printed copy. Except as expressly permitted under these Terms or applicable Guidelines, you may not modify, copy, publish, display, transmit, adapt or in any way exploit the PhDx Content without the prior written permission of PhDx.

13. Mobile Applications

To use or otherwise access the Mobile Applications, you must have a mobile device that is compatible with the Services and the Mobile Applications. PhDx does not warrant that the Services or Mobile Applications will be compatible with your mobile device.

PhDx does not charge for use of some basic Services or Mobile Applications; however you may be obligated to pay some fees for use of certain premium Mobile Applications. Further, a wireless carrier’s normal messaging, data and other rates and fees will still apply. You should therefore check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using the Mobile Applications may be prohibited or restricted by your carrier, and not all Mobile Applications may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Applications are available for your mobile device, and what restrictions, if any, may be applicable to your use of the Mobile Applications.

By using the Mobile Applications, you agree that PhDx may communicate with you regarding PhDx and the Services by SMS, MMS, text message or other electronic means directed to your mobile device and that certain information about your usage of the Mobile Application may be communicated to PhDx. In the event you change or deactivate your mobile device telephone number, you agree to promptly update your PhDx Account information to ensure that messages are not sent to the person that acquires your former number.

User End Licenses

PhDx herby grants you a personal, non-exclusive, non-transferable, revocable right and license to download and use the Mobile Application with one Account. An Account is comprised of the shared resources accessible by a single login ID on one mobile device owned or leased solely by you for your personal use.

You may not:

1. modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restrictions is expressly prohibited by law;
2. rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party;
3. make any copies of the Mobile Applications;
4. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or,
5. delete the copyright and other proprietary rights notices on the Mobile Applications.

You acknowledge and agree that PhDx may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Application that you employ on your mobile device. You expressly consent to such automatic upgrading on your mobile device, and agree that these Terms (and any additional modifications of the same) will apply to all such upgrades. With respect to any open source or third-party code that may be incorporated in the Mobile Applications, such open source code is covered by the applicable open source or third-party license, EULA, if any, authorizing use of such code.

The foregoing license grant is not a sale of the Mobile Applications or any copy thereof and PhDx or its third party partners or suppliers retain all rights, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in these Terms is void.

14. Links

The Services may provide, or third parties may provide, links to other websites or resources. Because PhDx has no control over such websites and resources, you acknowledge and agree that PhDx is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources.

15. Interactions with Other Users

Some of the Services may function as avenue to connect members in a virtual information place. As a neutral facilitator, PhDx is not directly involved in any actual transactions between users. As a result, PhDx has no control over the truth, accuracy, quality, legality, or safety of postings made by users of the Services. PhDx shall have no responsibility to confirm the identity of users. PhDx shall also have no responsibility to confirm or verify the qualifications, background, or abilities of users of the Services. You shall at all time exercise common sense and good judgment when dealing with any user of the Services. You are solely responsible for your involvement with other users.

If you elect to use certain Services for informing a friend about PhDx, PhDx will require you to provide your friend’s contact information and/or email address. PhDx will automatically send that friend a one-time email. PhDx may store the information you provide for a period of time, provided that PhDx will use such information only to identify if your friend is or later becomes a user of PhDx. You represent that you are authorized to provide any third party email address or other information that you provide to PhDx.

16. Electronic Communications

The Services may provide you with the ability to send emails, post messages to user forums, enter chat rooms, speak via internet voice connections or send similar messages and communications to third party service providers, advertisers, other users and/or PhDx. You agree to use communication methods available via the Services only to send communications and materials related to subject matter for which PhDx provided the communication method, and you further agree that all such communications by you shall be deemed your User Content and shall be subject to and governed by these Terms. By using any of the communications methods available via the Services, you acknowledge and agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties (b) communications sent to or received from third party service providers, advertisers, other users, or other third parties are not endorsed, sponsored or approved by PhDx (unless expressly stated otherwise by PhDx) and (c) communications are not pre-reviewed, post-reviewed, screened, archived or otherwise monitored by PhDx in any manner, though PhDx reserves the right to do so at any time at this sole discretion in accordance with these Terms. You agree that all notices, disclosures and other communications what we provide to you electronically shall satisfy any legal requirement that such communications be in writing.

17. Claims of Copyright Infringement

If you have reason to believe any part of the User Content, Third Party Content, or PhDx Content infringes the copyrights of others, please notify our Copyright Agent immediately using the contact information provided below. It is our policy to investigate any allegations of copyright infringement brought to our attention. We reserve the right in our sole discretion to immediately suspend and/or terminate access to the Services by any user who is alleged to have posted infringing materials or a link to infringing materials via the Services and to immediately remove or disable the allegedly infringing materials or link.

If you are the copyright owner (or are authorized to act on behalf of the copyright owner), please notify our Copyright Agent immediately if you believe that (a) any Content displayed by PhDx or the Services infringes your copyright or (b) any link posted via the Services links to materials that infringe your copyright. As soon as we receive your notice of claimed infringement, in the form described below, we will promptly remove or disable access to the materials that are claimed to be infringing (or the subject of infringing activity). Your notice must comply with the Digital Millennium Copyright Act (“DMCA”), be in writing and must include the following: a description of the copyrighted work you believe has been infringed (or if you believe multiple copyrighted works have been infringed, a representative list); a description of the material you believe is infringing or the subject of infringing activity, together with enough information to permit us to locate the material; enough information to permit us to contact you, such as, your name, address, telephone number and, if available, e-mail address; a statement that you have a good faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed (the “copyright owner”), an agent for the copyright owner, or by law; a statement that all of the information you have provided is accurate; and a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner. Your notice must be signed (physically or electronically) and must be addressed as follows:

You acknowledge that if you fail to comply with all the requirements of this section, your notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

18. Feedback

We welcome your comments, feedback, suggestions, and other communications regarding the Services (collectively “Feedback”). While you are not obligated to provide Feedback, in the event that you provide Feedback, you hereby grant to PhDx a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not transmit any Feedback that you do not wish to license to us as set forth above.

19. DISCLAIMERS OF WARRANTIES AND LIABILITY

General

THE SERVICES, INCLUDING THE MOBILE APPLICATIONS, AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH PHDX AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. PHDX AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUPPLIERS (INCLUDING WITHOUT LIMITATION PHDX’S THIRD-PARTY WIRELESS CARRIER PARTNERS), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

PHDX AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUPPLIERS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (E) ANY ERRORS IN REALTED TO THE SERVICES WILL BE CORRECTED.

PHDX AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION PHDX’S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MOBILE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT PHDX OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, MOREOVER, PHDX, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION PHDX THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE RESULTS OF THE USE OF ANY PERSONAL INFORMATION OR LOCATION INFORMATION OR THE SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABLITY, OR OTHERWISE. YOU (AND NOT PHDX OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE SERVICES.

YOU EXPRESSLY AGREE THAT PHDX IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. ALL CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS (B) A VISIT, CALL OF CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT P

Miscellaneous Disclaimers

PhDx further disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of any and all information or material provided in connection with, or by the Services, any search results generated by or through the Services, or displayed and/or presented through the Services.

PhDx also disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any and all information or material, including PhDx Content and User Content.

YOU UNDERSTAND AND AGREE THAT WHEN YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA VIA PHDX OR THE SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. PHDX DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM TO YOU THAT RESULTS FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH PHDX OR THE SERVICES.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

20. INDEMNITY

You agree to indemnify and hold PhDx and its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers harmless from any claim or demand, including reasonable attorney’s fees made by any third party due to or arising out: (a) User Content you submit, post, transmit, or otherwise seek to make available through the Services; (b) your use of the Services; (c) your connection to the Services; (d) your violation of any of these Terms; (e) your use or misuse of any user’s personal information or location information; (f) any violation of the rights of any other person or entity by you; or (g) your employment of the Services to meet another user in-person or to locate and attend any offline place or event. PhDx reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify PhDx, and said you agree to cooperate with PhDx’s defense of such claims.

21. LIMITATION OF LIABILITY AND DAMAGES

YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL PHDX, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUPPLIERS (INCLUDING WITHOUT LIMITATION PHDX’S THIRD-PARTY WIRELESS CARRIER PARTNERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF A USER’S PERSONAL INFORMATION OR LOCATION INFORMATION; (B) YOUR ABILITY OR INABILITY TO USE THE SERVICES; (C) THE SERVICES GENERALLY, INCLUDING THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH PHDX OR ANY OTHER USER OF THE SERVICES, EVEN IF PHDX OR A PHDX AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON PHDX OR THE SERVICES, OR THROUGH THE SERVICES, OR RECEIVED THROUGH ANY LINKS PROVIDED BY PHDX, AS WELL AS BY REASON OF ANY INFORMATION RECEIVED THROUGH OR ADVERTISED ON PHDX OR THE SERVICES, OR RECEIVED THROUGH ANY LINKS PROVIDED BY PHDX OR THE SERVICES.

THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF PHDX OR THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO PHDX OR THE SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

Without limiting the foregoing, under no circumstances shall PhDx be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitations, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

IN NO EVENT SHALL PHDX, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS, AND SUPPLIERS (INCLUDING WITHOUT LIMITATION PHDX’S THIRD PARTY WIRELESS CARRIER PARTNERS), TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR EMPLOYMENT OF THE SERVICES WHETHER IN CONTRACT, TORT, (INCLUDING WIHTOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS WHICHEVER IS GREATER.

YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY OR INCIDENTIAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, THE EXCLUSIONS, AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU, HOWEVER, AGREE THAT PHDX LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

22. Termination

You agree that PhDx may, under certain circumstances and without prior notice, immediately terminate your Account and/or access to the Services. Cause for such termination shall include, but not limited to: (a) breaches or violations of these Terms or other incorporated agreements or Guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account terminations); (d) discontinuance or material modifications to the Services (or any portion thereof ); (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your Account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and User Content associated with or inside your Account, and (z) barring of further use of the Services. Further you agree that all terminations for cause shall be made in PhDx’s sole discretion and that PhDx shall not be liable to you or any third party for any termination of your Account or access to the Site.

23. Applicable Law

The Services are controlled by PhDx from its offices within the United States of America. PhDx makes no representation that User Content or PhDx Content or the Services are appropriate or available for use in other locations, and access to them from territories where their content or use is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the PhDx Content, Third Party Content, or User Content in violation of U.S. export laws and regulations. Any action related to PhDx, the Services, PhDx Content, Third Party Content, User Content, or these Terms shall be governed by New Mexico law and controlling U.S. federal law, without regard to conflicts of laws thereof. You hereby consent and submit to the exclusive jurisdiction and venue in the state and federal courts located in Albuquerque, New Mexico for any legal proceedings related to these Terms or the Services. If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorney’s fees. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. Sections 1, 2, 5, 19, 20, 21, 22, 23, and 24 shall survive termination of your Account and/or these Terms.

24. General

You agree that no joint venture, partnership, employment, or agency relationship exists between you and PhDx as a result of these Terms or your use of the Services. These Terms constitute the entire agreement between you and PhDx with respect to your use of the Services. The failure of PhDx to exercise or enforce any right or provision of these Terms shall no constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You may not assign, delegate or otherwise, transfer your Account or your obligations under these Terms without the prior written consent of PhDx. PhDx has the right, it its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. PhDx’s notice to you via email, regular mail or notices or links displayed in connection with the Services shall constitute acceptable notice to you under the Terms. Notice will be deemed received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that the notice is provided via links displayed in connection with the Services then it shall be deemed received twenty-four hours after it is first displayed.

25. Support

PhDx will provide account support (“Support”) to a user via the following methods: