Terms of Service for KeepOnMovin’ Personal Edition
This is a contract between you and Intelligent Movement Systems, Inc. ("IMS", "we", "us" or "our"), a Delaware corporation. IMS is a technology and services company that enables patients to communicate and exchange health-related information more effectively with their physical therapists and other providers of healthcare services. This agreement applies to KeepOnMovin’ owned and operated by IMS. The terms “User”, “Member”, "you", and "your" refer to you, the User using KeepOnMovin’. The terms "IMS", "we", "us", and "our" refer to IMS.
HOW TO ACCEPT OR REJECT TH IS CONTRACT
THIS AGREEMENT DEFINES THE RIGHTS AND OBLIGATIONS OF IMS AND YOU, AS A MEMBER USING KEEPONMOVIN’. BEFORE YOU SELECT THE "I ACCEPT" CHECKBOX TO AND CREATE A KEEPONMOVIN’ ACCOUNT, CAREFULLY READ THESE TERMS OF SERVICE. BY CLICKING ON AND SELECTING THE "I ACCEPT" BUTTON, YOU BECOME A PARTY TO AND AGREE TO ALL OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT CREATE AN ACCOUNT AND DO NOT ACCESS KEEPONMOVIN’.
To enter into this contract with IMS and use the KeepOnMovin’ Service, you must be a resident of the United States or its territories and at least 13 years of age.
Non-personal and commercial accounts are prohibited in the absence of a separate agreement with IMS which explicitly allows such use.
2. SERVICES PROVIDED BY KEEPONMOVIN’
KeepOnMovin’ is a service which enables individuals to receive, access and transmit personal health-related information relating to physical therapy and related services. Subject to the existence of contractual relationships between IMS and various healthcare providers and health plans, it may be possible for your KeepOnMovin’ account to receive personal health-related information from your healthcare providers, or health plan. Although KeepOnMovin’ is intended to provide a convenient way for you to store, view, and share your personal health-related information, the information in your account may not be complete and may not always be accurate or up-to-date. We do not control, verify, or endorse the content that your healthcare provider may make available on KeepOnMovin’. While certain healthcare providers have access to information on your KeepOnMovin’ account, the information stored in your account is only intended for information purposes, and is not intended to be, and should not be relied upon for diagnosis or treatment. Information accessed in your account is not a substitute for visits and consultations with licensed healthcare providers.
There is no charge to you to use KeepOnMovin’ but you may be required to pay your healthcare provider(s) any agreed-upon fee for services rendered to you by your provider(s) as you would in any encounter with your provider(s). IMS is not involved with billing or collections associated with services rendered by healthcare providers
IMS is not obligated to correct errors, correct the effects of errors (e.g., fix your computer or recover lost data), or provide any technical support, except as necessary to use of KeepOnMovin’. Any technical support that IMS, in its sole discretion, may elect to provide to you will be provided only to the extent resources become available.
Your “Membership Term” shall commence on the date you enroll as a Member of KeepOnMovin’. Your Membership Term shall continue indefinitely until canceled or terminated pursuant to these Terms of Service.
KeepOnMovin’ is a private service that IMS owns and operates for the benefit of itself and its customers. IMS retains the right to block or otherwise prevent delivery of any type of communication to or from the KeepOnMovin’ Service as part of our efforts to protect the KeepOnMovin’ Service, protect our members and customers, or stop you from breaching this contract. The technology or other means we use may hinder or terminate your use of KeepOnMovin’.
3. KEEPONMOVIN’ DOES NOT PROVIDE HEALTCHARE SERVICES OR MEDICAL ADVICE
IMS and KeepOnMovin’ do not engage in the practice of medicine or the delivery of medical or healthcare services of any kind, and do not offer or provide medical advice. IMS does not employ or otherwise engage any physician or healthcare providers to practice medicine, physical therapy, or otherwise to provide healthcare services to any person. To the extent medical advice or communications are received through the KeepOnMovin’ service, KeepOnMovin’ is merely a conduit of advice or communications from your healthcare provider(s), similar to the telephone you might use to speak with your physician. IMS is not liable to you for any act or omission involving your Provider or any other medical or healthcare provider. Any healthcare services provided by your Selected Provider or any other healthcare provider to you is solely the result of that provider’s professional medical judgment.
Immediately call 911 or your physician for all medical emergencies. KeepOnMovin’ is not to be used for medical emergencies or time critical communications of an urgent and immediate nature. Providers may not read communications sent through KeepOnMovin’ in a timely manner and may not read communications sent through KeepOnMovin’ at all. IMS cannot guarantee a provider will read any communication. You agree that you will not transmit urgent or emergent information through KeepOnMovin’. You further agree that you will contact your provider by phone, or another method, if you do not receive a response to a communication transmitted through KeepOnMovin’ in a timely manner.
Any content accessed through KeepOnMovin’ is for informational purposes only, should not be used for the diagnosis or treatment of any medical condition, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. Consult your physician or other qualified healthcare provider if you have any questions about a medical condition, or before taking any drug, changing your diet or commencing or discontinuing any course of treatment. Do not ignore or delay obtaining professional medical advice because of information accessed through KeepOnMovin’.
4. STORAGE OF YOUR CONTENT IN KEEPONMOVIN’
KeepOnMovin’ will store for you and allow your access during the Membership Term to personal health-related data and information which you enter into KeepOnMovin’ or which your healthcare provider enters for you.
5. AUTHORIZATION TO COLLECT, USE AND SHARE YOUR PERSONAL HEALTH-RELATED INFORMATION
You acknowledge that IMS has no control over the use or further disclosure of information about you once it has been disclosed to others, and IMS is not responsible for the use or disclosure by others of your health information.
6. RESTRICTIONS ON YOUR USE
During the Membership Term, you shall assure that the information in your KeepOnMovin’ profile maintained in your KeepOnMovin’ account is complete and accurate. You shall (a) maintain the confidentiality of the username and password for your KeepOnMovin’ account and shall change that information if you believe that it is no longer confidential and (b) ensure that you exit from the account at the end of each session. IMS will not be liable for any loss or damage arising from your failure to comply with the foregoing provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
You hereby represent and warrant that you are enrolling as a Member for the bona fide purpose of using the KeepOnMovin’ Services in connection with your personal healthcare, and not for any other purpose.
You may not access KeepOnMovin’ other than by the interfaces provided by IMS or interfere with or disrupt the proper operation of KeepOnMovin’. You shall not attempt to gain unauthorized access to KeepOnMovin’ or its software, databases or systems, and shall not (and shall not attempt) to modify, copy, or reverse engineer the same for any purpose. You further agree that you will not share any login information, passwords or codes used in accessing KeepOnMovin’ except for bona fide purposes related to a Member’s healthcare.
You will not, and will not permit or assist anyone else to: (a) upload, post, email, or otherwise transmit any images that IMS, in its sole discretion, deems inappropriate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) use any automated tool (e.g., robots, spiders) to use KeepOnMovin’; (c) rent, lease, or sub-license your access to KeepOnMovin’ to another person or provide any content from KeepOnMovin’ to any other person or entity for any reason; (d) circumvent or disable any usage rules or other security features of KeepOnMovin’; (e) use KeepOnMovin’ in a manner that threatens the integrity, performance, or availability of KeepOnMovin’; or (f) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of KeepOnMovin’.
You must comply with all third party rights and applicable laws, regulations, and ordinances, including without limitation any laws regarding the export of data or software, in your use of KeepOnMovin’ and any content accessed through KeepOnMovin’. Sharing content on KeepOnMovin’ in any way that infringes others' rights, including without limitation intellectual property or privacy rights, is strictly prohibited. We may remove your content from KeepOnMovin’ at any time to terminate or prevent breach of the foregoing restrictions.
7. ACTING ON BEHALF OF A MINOR
If you are a custodial parent or legal guardian creating a KeepOnMovin’ account for and acting on behalf of a minor, you hereby represent that you have the legal authority to do so. Your ability to access the minor’s information may be restricted in accordance with applicable law. In certain states, a parent or guardian may not have access to a minor’s health-related information in connection with family planning, sexually transmitted disease, HIV/AIDS, ARC, and alcohol and substance abuse.
If you are the parent or guardian of a minor, you expressly consent to these Terms of Service on behalf of your minor child. Your minor child will be given access to KeepOnMovin’ at age 13. By accepting these Terms of Service, you agree your minor child may have access to his or her own health information. You agree you will not have access to health information pertaining to your minor children, age thirteen or older, unless your minor child expressly agrees to share his or her health information with you.
You agree you will safeguard your login credentials and password. You agree you will not distribute your login credentials to any other party. You agree you will not access KeepOnMovin’ by using another user’s credentials.
9. NO WARRANTY
BY USING KEEPONMOVIN’, YOU ACKNOWLEDGE THAT THE NATURE OF THE INTERNET IS NEITHER SECURE NOR PRIVATE. ACCORDINGLY, YOUR USE OF KEEPONMOVIN’ IS AT YOUR SOLE RISK. KEEPONMOVIN’ IS PROVIDED ON AN "AS IS", “WITH ALL FAULTS”, AND "AS AVAILABLE" BASIS. IMS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF KEEPONMOVIN’ OR ITS CONTENT, AND YOU RELY ON KEEPONMOVIN’ AT YOUR OWN RISK. ANY MATERIAL TRANSMITTED THROUGH USE OF KEEPONMOVIN’ IS DONE AT YOUR OWN DISCRETION AND RISK AND NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM IMS OR THROUGH OR FROM KEEPONMOVIN’ WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS CONTRACT. SOME STATES MAY PROHIBIT OR LIMIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
EMERGENCIES AND TIME SENSITIVE COMMUNICATIONS: IMS DOES NOT WARRANT OR GUARANTEE THAT ALL KEEPONMOVIN’ SERVICES WILL BE AVAILABLE AT ALL TIMES DURING THE MEMBERSHIP TERM. AS WITH ANY TECHNOLOGY, IT IS PROBABLE THAT KEEPONMOVIN’ SERVICES WILL BE UNAVAILABLE OCCASIONALLY BECAUSE OF PLANNED OR UNPLANNED DOWNTIME. WE HAVE NO CONTROL OVER YOUR PROVIDERS AND THEIR MONITORING OF OR FAILURE TO MONITOR COMMUNICATIONS FROM YOU. IN RECOGNITION OF THESE AND OTHER LIMITATIONS, YOU SHALL NOT USE OR RELY ON THE KEEPONMOVIN’ SERVICES FOR TIME SENSITIVE COMMUNICATIONS OR TO OBTAIN ASSISTANCE IN A MEDICAL EMERGENCY.
PROGRAMS AND DEVICES AND THIRD PARTY SERVICES THAT CONNECT WITH KEEPONMOVIN’ ARE NOT ENDORSED OR WARRANTED BY IMS. WE DO NOT OPERATE, CONTROL OR SUPPLY ANY PROGRAM, PRODUCT, OR SERVICE THAT IS NOT CLEARLY AND EXPRESSLY IDENTIFIED AS SUPPLIED BY IMS.
10. LIMITATION OF LIABILITY
THIS AGREEMENT DOES NOT CONFER ANY PRIVATE RIGHT OF ACTION FOR BREACH OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, OR ANY OTHER LAW THAT DOES NOT EXPRESSLY PROVIDE FOR A PRIVATE RIGHT OF ACTION.
IMS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMS HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF KEEPONMOVIN’. UNDER NO CIRCUMSTANCES WILL IMS’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS CONTRACT AND YOUR USE OF COZEZA, EXCEED THE GREATER OF THE TOTAL AMOUNT PAID BY YOU TO IMS FOR THE KEEPONMOVIN’ SERVICE OR $25. THESE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
THE LIMITATIONS AND EXCLUSIONS APPLY TO ANYTHING RELATED TO THIS CONTRACT, FOR EXAMPLE: THE KEEPONMOVIN’ SERVICE; LOSS OF DATA; PRIVACY OR SECURITY BREACHES AS A RESULT OF WHICH DATA IS OBTAINED BY UNAUTHORIZED PERSONS, EVEN THOUGH THE BREACH MAY BE ATTRIBUTABLE TO THE NEGLIGENCE OF IMS; CONTENT (INCLUDING CODE) ON THIRD PARTY INTERNET SITES; THIRD PARTY PROGRAMS OR THIRD PARTY CONDUCT, VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE KEEPONMOVIN’ SERVICE; INCOMPATIBILITY BETWEEN THE KEEPONMOVIN’ SERVICE AND OTHER SERVICES, SOFTWARE AND HARDWARE; DAMAGE TO YOUR COMPUTER OR SMARTPHONE OR OTHER DEVICE; DELAYS OR FAILURES YOU MAY HAVE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE KEEPONMOVIN’ SERVICE IN AN ACCURATE OR TIMELY MANNER; FAILURE OF A PROVIDER TO APPEAR FOR AN APPOINTMENT OR TAKE ANY OTHER ACTION ARRANGED OR AVAILABLE THROUGH THE KEEPONMOVIN’ SERVICE; AND CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR MISREPRESENTATION.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IT IS POSSIBLE THAT NOT ALL OF THE ABOVE LIMITATIONS APPLY TO YOU.
You will indemnify and hold IMS, and its subsidiaries, affiliates, directors, officers, agents, and employees, harmless from any costs, damages, expenses, attorneys’ fees, and liability, caused by your use of KeepOnMovin’, your violation of this contract, or your violation of applicable law or any rights of a third party through use of KeepOnMovin’.
12. CHANGES TO THE SERVICE AND CANCELLATION / TERMINATION
We may change the KeepOnMovin’ Service, add and delete features, or terminate service at any time and for any reason. You may cancel the KeepOnMovin’ Service at any time and for any reason. We may cancel or suspend your KeepOnMovin’ Service at any time for any reason and/or terminate this contract, including without limitation if we later decide to charge for KeepOnMovin’ and you elect not to become a paying customer. Our reasons for cancellation and termination may include without limitation that we stop providing the KeepOnMovin’ Service in your region or with your Provider or Health Plan, or if you breach this contract or fail to sign in to KeepOnMovin’ over a period of time. If we cancel your service, we will make good faith efforts to provide you with advance notice if feasible under the circumstances (for example, via KeepOnMovin’ or notices posted on KeepOnMovin’). Upon cancellation of your service, your right to use KeepOnMovin’ and your access to KeepOnMovin’ stops immediately. Applicable terms will survive any termination of this contract.
If your KeepOnMovin’ Service is canceled, we may permanently delete your data and information from our servers unless applicable law requires otherwise. Data and information that is deleted may be irretrievable. We have no obligation to return data and information to you after the KeepOnMovin’ Service is cancelled or to destroy such data and information. We may in our sole discretion make reasonable efforts to maintain your personal registration and health-related information for some period of time following cancellation and/or termination; however, IMS should not be relied upon to do so.
13. INTELLECTUAL PROPERTY
IMS owns all intellectual property and other proprietary rights related to the KeepOnMovin’ Service. You understand and agree that you do not have and will not hereby obtain any ownership or other rights in and/or to the same or related to any software, video, media, program or process used by IMS, its members and/or its customers. You acknowledge that KeepOnMovin’, and other products and services supplied by IMS, may be protected by US and international copyright and patent laws, international treaty provisions and all other applicable US, state and international laws.
You may provide feedback concerning KeepOnMovin’, including identifying potential errors and improvements ("Feedback"). You hereby grant IMS the unrestricted right to use your Feedback, including using your Feedback to improve KeepOnMovin’ and create other products and services.
14. COPYRIGHT AND TRADEMARK NOTICES
Contents of the KeepOnMovin’ Service which are not personally identifiable, are Copyright Intelligent Movement Systems, Inc., 1000 Elwell Court, Suite #238, Palo Alto, CA 94303 U.S. All rights reserved. We own all rights, title, and interest in all copyright, and other intellectual property rights in the KeepOnMovin’ Service and its non-personally identifiable content. KeepOnMovin’, Intelligent Movement Systems, Inc., and their respective logos, may also be either trademarks or registered trademarks of IMS in the United States and/or other countries.
You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further details):
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interests;
a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
identification of the URL or other specific location on the Service where the material that you claim is infringing is located;
your address, telephone number, and email address;
a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
15. GENERAL LEGAL TERMS
SEVERABILITY. Any provision of this Agreement that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of this Agreement, and such other provisions shall remain in full force and effect.
ASSIGNMENT. We may assign or transfer our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the KeepOnMovin’ Service, and any attempt to do so shall be null and void.
NO THIRD PARTY BENEFICIARIES. This contract is solely for your and our benefit. It is not for the benefit of any other person or entity, except for permitted successors and minor children for whose benefit an account is created.
NOTICES. A notice from IMS to you pursuant to these Terms of Service will be considered delivered by IMS when IMS submits an email message to your then-current or last known contact email address in your KeepOnMovin’ membership profile. In addition, you agree that we may provide you with any required information via email to such email address, and delivery will be deemed completed when email is sent. Any notice from you to IMS pursuant to these Terms of Service shall be provided by submitting an email message to IMS’s Member Contact email address identified in the KeepOnMovin’ Service and delivering a copy of the same by US mail or a national overnight delivery service to the executive headquarters of IMS addressed to the attention of IMS’s Chief Executive Officer.
16. CHOICE OF LAW AND RESOLUTION OF DISPUTES
This Agreement is governed by the laws of the State of California, without regard to conflicts of law principles. Any legal actions against us must be commenced within one year after the claim arose, or else claims shall be permanently barred. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before three arbitrators. YOU WAIVE ANY RIGHT TO FILE ANY OTHER CLAIM OF ANY KIND IN COURT OR HAVE A JURY TRIAL. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrators determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrators may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
Judgment on the Award may be entered in any court having jurisdiction. The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration, or any other judicial or administrative action, with any claim or controversy of any other party.
Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief, as necessary to protect, the party's rights or property pending the completion of arbitration. The state and Federal courts of California, shall have exclusive jurisdiction over any dispute, claim, or controversy arising through your use of KeepOnMovin’. You and IMS expressly waive all defenses of lack of personal jurisdiction and forum non conveniens.
17. CHANGES TO THE TERMS OF SERVICE