PTRx Website Terms & Conditions
Effective July 1, 2022
Welcome to the PTRx website. The PTRx Website offers a large library of effective and evidence-based exercises. American Specialty Health Incorporated, together with all its subsidiaries and affiliates, including PTRx, are referred to hereinafter collectively as "ASH" or "we".
1. READ CAREFULLY:
1.1.The following terms and conditions (collectively, these “Terms” or “User Agreement”), together with the PTRx Privacy Statement, constitute a legally binding agreement between you and ASH that governs your use of the PTRx Website, including its contents and elements (text, graphics, artworks, logos, trademarks, service marks, designs, photos, images, videos, audios, listings, directories, printable or downloadable materials, programming/HTML code, page layouts, “look and feel” and user interface designs, embedded software tools and applications, etc.), and any other websites or applications and digital features related to PTRx (the “PTRx Website” or “Website”). By using the Website, you accept and agree to be bound by the following Terms and the Website Privacy Statement applicable to your use of the Website.
1.2. PRIVACY STATEMENT
1.2.1. As is true of most websites, your use of the PTRx Website may result in ASH gathering certain information automatically. We may maintain standard Website logs that record data about visitors to and users of this Website and store this information for no longer than reasonably useful to carry out its legitimate business purpose, or as legally required. These logs may contain, but the contents may not be limited to, the Internet domain from which you access the Website, the IP address which is automatically assigned to your computer when you get on the Internet, the type of browser and operating system you use, the date and time you visited the Website, the Website pages you viewed, and the address of the website you linked from, if any. If you sign on to the Website to use secured features, our Website logs may also contain an individual identifier, and may show the services you have accessed. Our use and disclosure of personal information collected through this Website is limited as required by state and federal law. We will not sell or rent personal information that may be collected by this Website, nor will we use it for marketing or fundraising activities.
1.2.2. We may revise this Privacy Statement from time to time if we have a business need to do so (for example, if we change the way we manage information), or as laws change that may affect this Privacy Statement. If the change is material, we will ask you to reaccept this Privacy Statement the next time you log in to the Website after the change is posted. If the change is not material, your continued use of the Website constitutes your acceptance of the revised Privacy Statement. Any revised Privacy Statement will apply both to information we already have about you at the time of the change, and any personal information created or received after the change takes effect. We include a version number on this Privacy Statement consisting of the date (month, day, and year) it was last revised. We encourage you to periodically reread this Privacy Statement, to see if there have been any changes to our policies that may affect you.
1.2.3. Privacy Statement version July 1, 2022.
2. NOTE TO INTERNATIONAL USERS: The PTRx Website is intended for U.S. residents only. If you are outside of the United States and access the Website or submit your personal information to us, please be advised that U.S. law may not offer the same privacy protections as the law of your jurisdiction. By using the Website or submitting your personal information to us, you consent to the transfer to and processing of your personal information in the United States.
3. IMPORTANT NOTICES AND DISCLAIMERS:
3.1. THE PTRX WEBSITE IS NOT INTENDED TO PROVIDE INSTRUCTIONS IN THE EVENT OF AN EMERGENCY. IF YOU BELIEVE YOUR SYMPTOM OR SITUATION IS LIFE-THREATENING, CALL 911 OR YOUR EMERGENCY MEDICAL SYSTEM IMMEDIATELY.
3.2. THIS USER AGREEMENT CONTAINS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION.
3.3 Medical Advice and Health Information Disclaimers:
3.3.1. ASH IS NOT A MEDICAL PROVIDER AND ITS STAFF CANNOT GIVE MEDICAL ADVICE OR PROVIDE ANY INFORMATION CONCERNING THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL OR HEALTH CONDITION. THE INFORMATION ON THE PTRX WEBSITE IS OF A GENERAL NATURE AND IS INTENDED ONLY FOR EDUCATIONAL PURPOSES TO HELP WITH YOUR PERSONAL FITNESS AND HEALTHY AGING GOALS AND SHOULD NOT BE RELIED ON AS MEDICAL ADVICE. THE INFORMATION ON THE PTRX WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR THE DIAGNOSIS OR TREATMENT OF OR CONSULTATION CONCERNING ANY MEDICAL OR HEALTH CONDITION BY QUALIFIED HEALTH CARE PROFESSIONALS.
3.3.2. The PTRx Website and services are in no way intended to be professional medical advice, or substitute for professional medical advice, nor do they provide medical services or a medical exam. Furthermore, the PTRx Website and services are intended for educational purposes only. Products and services available on the PTRx Website are not insurance. The PTRx Website expressly prohibits you from using information and services on the PTRx Website to diagnose, treat, cure, or prevent any medical condition. If you have a health condition or illness, or you require a medical opinion, you should consult with a licensed health professional in your area for proper examination, diagnosis, and treatment. Application or reliance on any of the content, techniques, ideas and suggestions accessed through the PTRx Website is at your sole discretion and risk.
3.3.3. The PTRx Website is for general informational purposes only. ASH makes NO representation or warranty, whether express or implied, with respect to the Website. ASH does NOT endorse and is NOT responsible for any participant-posted view, opinion, advice, statement or comment on the Website. NOTHING YOU SEE OR READ OR OBTAIN FROM THE WEBSITE IS INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL OR MENTAL HEALTH ADVICE, DIAGNOSIS OR TREATMENT. This also applies to any interactive tools that may be made available through the Website. Such interactive tools are in no way intended as, nor are a substitute for, qualified, expert medical diagnosis, advice, counseling, or treatment. Information you submit to ASH when using such interactive tools is retained by ASH and will be used by ASH for operating the interactive tools including providing you with information that you have requested or that may be of interest to you, and for other purposes described in our Privacy Statement, or as otherwise authorized by you.
3.3.4. The information provided on the PTRx Website does not substitute for or replace services of trained professionals in their fields of expertise. We recommend consulting with a doctor on a regular basis with respect to any matter relating to physical or mental health, especially concerning symptoms that may require diagnosis or medical attention. Neither ASH nor any of its affiliates, licensors, content providers or suppliers makes any representations or warranties concerning any treatment, action or application of medication or preparation by any person following the information provided on or through the PTRx Website. ASH, its licensors, its content providers and suppliers shall not be liable for any direct, indirect, consequential, special, exemplary, or other damages that may result from the use of the PTRx Website, including, without limitation, any such damages with respect to any economic loss, injury, illness or death.
3.3.5. You should not delay or forego seeking medical care from a licensed health care professional because of information that may be referenced on the PTRx Website. You should consult with your physician or pharmacist before taking any prescription or over-the-counter drugs (including any herbal medicines or dietary supplements) or following any treatment or regimen. Only your physician or pharmacist can provide you with advice on what is safe and effective for you.
3.3.6. You agree that you will not use information provided on the PTRx Website to self-diagnose, treat, cure, or prevent any medical condition.
3.3.7. The information contained herein has been devised generally and could be affected by certain cultural, social, dietary, or language differences.
3.4. Personal Health Improvement Warning and Disclaimer
3.4.1. Some personal health improvement programs are not appropriate for individuals who have certain medical or other health conditions. YOU ARE STRICTLY RESPONSIBLE FOR SEEKING MEDICAL ADVICE FROM A PHYSICIAN PRIOR TO PARTICIPATING IN ANY PERSONAL HEALTH IMPROVEMENT PROGRAM, DISCUSSED, MENTIONED OR PROVIDED ON THE PTRX WEBSITE INCLUDING, BUT NOT LIMITED TO, HEP. You hereby agree and understand that you may not be aware of a medical condition from which you suffer, and therefore you should not participate in the personal health improvement programs discussed in the PTRx Website prior to seeking the advice of a physician.
3.4.2. Physical exercise may result in injury, and not all exercises are safe or suitable for everyone. PLEASE ALWAYS CONSULT YOUR DOCTOR BEFORE BEGINNING ANY EXERCISE OR FITNESS PROGRAM, especially if you have any chronic or recurring condition, and/or if you are pregnant, nursing, or elderly. ASH, its content providers and its suppliers are NOT responsible or liable for any injury or illness you suffer from physical exercise. By engaging in an exercise or fitness program, you assume all risks of injury and illness.
3.4.2.1. ALWAYS warm up before beginning any workout.
3.4.2.2. NEVER exercise beyond the level at which you feel comfortable.
3.4.2.3. PLEASE STOP EXERCISING IMMEDIATELY if you experience pain, soreness, fatigue, shortness of breath, dizziness, lightheadedness, blurred vision, headache, nausea, sickness, illness, dehydration, excessive sweating, or any other discomfort. If any of these symptoms persists after you stop exercising, please seek medical help immediately.
3.5. Home Exercise Program (HEP) Disclaimer:
3.5.1.Your each instance of your use of the PTRx home exercise program (the “HEP”) constitutes your agreement with the following: You agree that are participating in a home exercise program (HEP). You agree that the video and printed exercises available on the PTRx Website are generalized versions of the exercises prescribed to you, and as such, you agree to follow the specific instructions provided to you by your care provider (Physical Therapist, Athletic Trainer, etc.)and you agree that you will use these video exercises only in accordance with said specific instructions. You agree to hold harmless ASH, PTRx, and their affiliated and/or parent companies from any and all costs, expenses, claims, demands, causes of action, liabilities and responsibilities arising from or connected to your actions in use of said videos.
3.6. EmpoweredDecisions! Disclaimer
3.6.1. If you access the PTRx Website through EmpoweredDecisions!, the following applies to you:
3.6.1.1. If you have reported you have had a surgical procedure, please read the following:
3.6.1.1.1. This sample exercise program may be helpful for you as you return to your normal activities. These exercises are examples of those commonly recommended after the surgery you reported, but each individual situation is unique and may need the direction of your rehabilitation provider (i.e. physical therapist) or surgeon. Continue to follow the Home Exercise Program that was prescribed for you by your surgeon or physical therapist. You should NOT change your rehabilitation approach as provided by your physician and/or rehabilitation provider. These exercise videos will remind you of the exercises that your treating providers have recommended. It is likely that some or many of the exercises in this sample program are the same as those recommended. Ask your provider if you would like to use these exercise videos in addition to those prescribed to help you with your recovery.
3.6.1.1.2. This sample of exercises can help to strengthen your muscles, increase your mobility, and improve your function. You do not need to do all of the exercises. Choose the ones you are familiar with or interested in trying. Make sure to follow the instructions carefully. Be mindful of your form and posture as you do each exercise. Try to perform the exercises in the same manner as the model in the video. If you feel any pain, stop. Try another exercise if you like.
3.6.1.1.3. Any information or exercises provided in the Empowered Decisions program are not intended to take the place of regular medical care or advice. It’s important to know when your pain or other symptoms may be a sign of a more serious problem. If you have questions about how to use this information based on your individual health circumstances, contact your health care provider. This program does not provide medical advice, diagnosis, or treatment. See the Terms of Use for additional information.
3.6.1.2. If you have reported you have a musculoskeletal condition, please read the following:
3.6.1.2.1. This sample exercise program may be helpful for you. These exercises can help to strengthen your muscles, increase your mobility, and improve your function. They may also help to ease your pain. You do not need to do all of the exercises. Choose the ones you are familiar with or interested in trying. Make sure to follow the instructions carefully. Be mindful of your form and posture as you do each exercise. Try to perform the exercises in the same manner as the model in the video. If you feel any pain, stop. Try another exercise if you like.
3.6.1.2.2. Any information or exercises provided in the Empowered Decisions program are not intended to take the place of regular medical care or advice. It’s important to know when your pain or other symptoms may be a sign of a more serious problem. If you have questions about how to use this information based on your individual health circumstances, contact your health care provider. If you are currently being treated by a provider, these exercise videos will remind you of the exercises that your treating providers have recommended. It is likely that some or many of the exercises in this sample program are the same as those recommended. Ask your provider if you would like to use these exercise videos in addition to those prescribed to help you with your recovery. This program does not provide medical advice, diagnosis, or treatment. See the Terms of Use for additional information.
3.6.1.3. Please read and accept the PTRX Terms of Service before starting your first prescription.
3.7 General Information Disclaimer:
3.7.1. ASH does not make any warranty, express or implied, or assume any legal liability or responsibility for the completeness or usefulness, or the accuracy or quality of any information presented on the PTRx Website. The information on the PTRx Website is subject to change without notice and cannot be guaranteed to be current.
3.7.2. ASH may continue to add, modify and delete existing features of the PTRx Website without the need to update these Terms.
4. Use of the PTRx Website.
4.1. The following rules apply to your use of the PTRx Website:
4.1.1. You must be 18 years of age or older to use the PTRx Website. If you are under the age of 18, use of the PTRx Website is permitted only with the oversight of a parent or guardian.
4.1.2. You must reside in the United States.
4.1.3. You may use the Website only for your own personal, non-commercial use, and only for legally permitted purposes. You may not re-sell any aspect of the Website.
4.2. If you access and use the PTRx Website on your smartphone, tablet or other mobile device, you are responsible for all charges (including data and messaging charges) relating to use of the Website through your mobile device. We do not guarantee that the Website is compatible with any particular operating system, browser, mobile device or other software or equipment.
4.3. You agree to not share the HEP, the HEP exercises or any part of the PTRx Website with any person or persons.
5. Prohibited Uses: Any unauthorized or unlawful use of the Website is strictly prohibited. Specifically, you may NOT:
5.1. use the Website for any unlawful purpose, including, without limitation: operating any scam or fraudulent scheme (such as a pyramid or Ponzi scheme); impersonating another, or making unauthorized use of another’s information; disseminating junk email, spam, or other unsolicited and unwanted messages or communications; or collecting personal information from or about others (including click farm customers) without their knowledge or consent, including through “phishing” or under any other false pretense;
5.2. use the Website to upload, store, post, display, transmit, publish or distribute any material that: (i) is unlawful; threatening; harassing; abusive; hateful; discriminatory; derogatory; obscene; vulgar; pornographic; excessively violent; false, deceptive or misleading; defamatory or libelous; or otherwise offensive; (ii) promotes, solicits or aids crimes or illegal activities; (iii) promotes or solicits violence; (iv) promotes or solicits gambling, public intoxication, underage drinking, or drug abuse; (v) promotes or solicits animal cruelty; (vi) contains, promotes, or links to fake offers, scams, or other fraudulent schemes (such as pyramid schemes and Ponzi schemes); (vii) contains, promotes, or links to viruses, worms, Trojan horses, spyware, malware, ransomware, or other malicious, harmful or disruptive code or material that is designed to damage, interfere with, intercept, lock out, or expropriate any software, hardware, information or data; or (viii) violates or misappropriates another’s copyright, trademark, trade secret, patent, right of publicity, right of privacy, contractual right, or other property or proprietary right of any kind (including, without limitation: using another’s name, likeness, photo, or other identity without consent);
5.3. make copies of (except as permitted in this User Agreement), modify, alter, translate, or otherwise create derivative works from, or transmit, publish, sell, transfer, license, or otherwise distribute (other than as expressly permitted by applicable law), the Website;
5.4. use the Website for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of developing any product or service to compete against ASH or its programs;
5.5 interfere in any way with the operation of the Website (or other related program features), or any server, network or system associated therewith, including, without limitation: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Website (or other related program features), or any server, network or system associated therewith; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another’s account that you are not expressly authorized to access;
5.6. use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, or automated agents or scripts) to access the Website, or to register multiple accounts on the Website, or to generate automated searches, requests, or queries to the Website, or to strip, scrape, extract, or mine data or information from the Website (except, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file);
5.7. remove, erase, conceal, alter, or otherwise tamper with ASH or third-party intellectual property, attribution, or other proprietary rights or legal Notices included in the Website;
5.8. link to, frame, or otherwise create a browser or border environment around, the Website, without the express prior written consent of ASH;
5.9. use any trademark or service mark of ASH: (i) for advertising, promotional, marketing, sale, or any other commercial or for-profit purposes (unless with the express prior written consent of ASH); (ii) in any way that falsely suggests or implies an association or affiliation with, or endorsement, sponsorship or approval by, ASH or the ASH program or the Website; or (iii) in any way that defames or disparages ASH or the ASH program or the Website; or otherwise use the Website in a way that violates these Terms or any applicable law.
6. User Submissions
6.1. Except as expressly otherwise provided in this User Agreement or the Privacy Statement, any other communication(s) or material(s) you transmit to the PTRx Website by electronic mail or other medium, including any questions, comments, or suggestions, is and will be treated as non-confidential and non-proprietary information and may be used by ASH, ASH’s vendors, or its affiliates or related entities for any purpose, including but not limited to, reproductions, disclosure, transmission, publication, broadcast, and postings. Furthermore, ASH, ASH’s vendors and its affiliates and related entities are free to use any information, ideas, concepts, inventions, or techniques contained in any communication you send to the PTRx Website for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products or services. If you wish to keep any information, ideas, concepts, inventions or techniques private or proprietary, do not submit them to the PTRx Website.
6.2. You represent and warrant that any content or material you submit to ASH: (1) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights; (2) will not violate any law, statute, ordinance or regulation; (3) will not be obscene or contain child pornography; (4) will not contain any viruses, worms, time bombs or other computer programming code that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (5) will not violate any third party's rights of publicity or privacy; and (6) will not be defamatory, unlawfully threatening or harassing, harmful to minors in any way, or otherwise offensive or inappropriate. You are responsible for complying with all laws applicable to your submitted content or material.
7. Interactive Tools
7.1. Any interactive tools, including but not limited to Online Classes, (“Interactive Tools”), provided on the PRTx Website are designed to provide general educational information only, and is not intended to provide medical advice of any kind. If you or your loved ones have a health condition or illness, or you require a medical opinion, you must consult with a licensed health professional in your area for proper examination, diagnosis, and treatment. The Interactive Tools are in no way intended as, nor are a substitute for, qualified, expert medical diagnosis, advice, counseling, or treatment. Information you submit to ASH when using the Interactive Tools is retained by ASH and will be used by ASH for operating the Interactive Tools including providing you with information that you have requested or that may be of interest to you, and for other purposes described in the PTRx Website Privacy Statement or as otherwise authorized by you.
8. Third-Party Products and Services
8.1. The PTRx Website contains information and links about third-party health and wellness products and services (such as fitness clubs, exercise centers, prescription and over-the-counter drugs, herbal medicines, dietary supplements, etc.) (collectively, “Third-Party Products/Services” and each, a “Third-Party Product/Service”). Information and links about Third-Party Products/Services are provided for your convenience and general information purposes only. ASH and the PTRx Website do not produce, provide, sell, sponsor, endorse or warrant any Third-Party Product/Service. To make an online purchase for a Third-Party Product/Service, you must go to the website of the applicable third-party seller or provider (“Applicable Third-Party Seller/Provider”). When you purchase a Third-Party Product/Service, you are dealing with the Applicable Third-Party Seller/Provider and not with ASH. Prior to making a purchase for any Third-Party Product/Service, you should carefully review the Applicable Third-Party Seller/Provider’s terms and conditions and privacy policy.
8.2. You acknowledge and agree that ASH and the PTRx Website make no representation or warranty, whether express or implied, with respect to: (i) the availability, price, make, material, craftsmanship, style, genuineness, quality, durability, performance, warranty, customer service, or ethical or environmental standard of any Third-Party Product/Service; or (ii) your level of satisfaction with any Third-Party Product/Service. You further acknowledge and agree that in no event shall ASH and the PTRx Website be held responsible or liable for any injury (including death), loss or damage of any kind incurred by you or any other person as a result of: (i) your use of (or inability to use) a Third-Party Product/Service; (ii) any defect or error in a Third-Party Product/Service; (iii) the failure or refusal by an Applicable Third-Party Seller/Provider to accept a return, to make an exchange, to issue a refund or credit, or to honor a warranty with respect to a Third-Party Product/Service; or (iv) any billing error, overcharge, or any unauthorized or fraudulent charge, by an Applicable Third-Party Seller/Provider. You hereby release (to the maximum extent permitted by applicable law) ASH and its affiliates and subsidiaries and their respective officers, directors, agents, and employees from any and all losses, claims, liabilities and damages (including without limitation any direct, indirect, consequential, incidental, punitive, special or exemplary damages), whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that arise from or relate to any issue or dissatisfaction you may have with a Third-Party Product/Service.
9. Use Website At Own Risk
9.1. THE SERVICES, PRODUCTS AND CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PTRX WEBSITE ARE DONE AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCTS OR CONTENT. ASH IS NOT RESPONSIBLE FOR ANY TERMINATION OF YOUR CONNECTION TO THE PTRX WEBSITE, EVEN IF SUCH TERMINATION OF CONNECTION AFFECTS ANY PURCHASE OR OTHER ACTIVITY OF USER ON THE PTRX WEBSITE.
10. Proprietary Rights
10.1. The PTRx Website contains proprietary information, including, but not limited to, logos, service marks, trademarks, software, photos, videos, text, graphics, comments, feedback, ideas, templates, instructions, notes, drawings, articles and other materials, and the selection, assembly and arrangement of information on the PTRx Website (collectively, “Content”). Unless otherwise noted, all Content is protected by copyrights, trademarks, service marks and other proprietary rights that are owned by ASH, ASH affiliates, or by third parties that have licensed their use to ASH. You may download material displayed on the PTRx Website for noncommercial, personal use only, including showing the print-out to your personal physician or pharmacist, provided you also retain all copyright and other proprietary notices contained on the materials. You may not, however, use, reproduce, copy, distribute, modify, transmit, repost, display, publish, sell, license, create derivative works, assign or transfer any Content or information on the PTRx Website for public or commercial purposes without ASH's prior written permission. Nothing on the PTRx Website shall be construed as conferring any license or other rights under the intellectual property or other proprietary rights of ASH, its affiliates, or any third party, whether by estoppel, implication, or otherwise.
10.2. EmpoweredDecisions! and the EmpoweredDecisions! logo are federally registered trademarks of American Specialty Health Incorporated. You shall not display, disparage, dilute, or taint our marks or use any confusingly similar marks or use our marks in such a way that would misrepresent who the proper owner of such marks is. Any permitted use of our marks by you shall inure to our benefit. Content of the PTRx Website is copyrighted Copyright © 2004-2022, American Specialty Health Incorporated or its licensors. All rights reserved.
11. PARTICIPANT INDEMNIFICATION AND RELEASE
11.1 Participant Indemnification: By using any and/or all of the Website, you agree to indemnify and hold harmless ASH and its licensors/content providers/suppliers, ASH’s successors, assigns and licensees, as well as their respective officers, directors, employees, agents and representatives (collectively, “ASH and Related Parties”), from and against any and all claims, actions, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (i) your violation of these Terms or any applicable law; (ii) your use of any fitness location through the program, including any of your activities at such fitness location; (iii) any injury (including death), damage or loss incurred by you, or caused to any third party by you, in connection with or in the course of your participation in the program; (iv) your use of any information, product, service, or other material obtained from the program or the Website, including your use of any Third-Party Site/Product/Service; and/or (v) any material submitted by you as applicable.
11.2. Participant Release: By using any and/or all of the program and/or the Website, you also hereby release and forever discharge (to the fullest extent permitted by applicable law) ASH and Related Parties from any and all claims, actions, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (i) the program; (ii) the Website; (iii) any information, product, service, or other material available through the program or the Website, including any third-party site/product/service as applicable; and/or (iv) your use of (or inability to use), or your reliance upon, the program, the Website, or any information, product, service, or other material obtained from the program or the Website, including any third-party site/product/service, as applicable.
11.3. IF YOU ARE A CALIFORNIA RESIDENT, YOU FURTHER HEREBY WAIVE ALL RIGHTS AND BENEFITS UNDER CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING RELEASE – CALIFORNIA CIVIL CODE SECTION 1542 PROVIDES:
11.4. GENERAL RELEASE: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
12. Disputes
12.1 Waiver of Right to Pursue Class Action Claims
Unless prohibited by law, you agree to only resolve disputes with us on an individual basis and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity. YOU AND ASH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
12.2 Waiver of the Right to Seek Public Injunctive Relief
You agree to waive any right to seek public injunctive relief. If this provision is found to be unenforceable, you agree that a claim for public injunctive relief will be brought in arbitration pursuant to the terms herein, and that you expressly acknowledge you are waiving any and all rights to bring a public injunctive relief claim in court.
12.3 Notice of Dispute
12.3.1. Prior to filing a demand for arbitration, you must provide notice and an opportunity to respond to ASH and/or ASH must provide Notice and an opportunity to respond to you.
12.3.2. You must send a Notice of Dispute describing the dispute by certified mail to ASH as detailed in Section 14.6.1. ASH then has 30 days from receipt of your Notice of Dispute to respond. If you deem ASH’s response unsatisfactory, you may file a demand for arbitration as detailed in Section 12.4 below.
12.3.3. ASH must send a Notice of Dispute describing the dispute to you at the email address associated with your account. You then have 30 days from receipt of ASH’s Notice of Dispute to respond. If ASH deems your response unsatisfactory, ASH may file a demand for arbitration as detailed in Section 12.4 below.
12.4 Agreement to Arbitrate Claims
12.4.1. You agree to arbitrate all disputes between you and us pursuant to the Federal Arbitration Act. If a dispute arises between you and us relating to the Website or these Terms, you and we agree that the dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations (“AAA Rules”). You and we agree to the following rules relating to any arbitration proceeding:
12.4.1.1. YOU AND ASH WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
12.4.1.2. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
12.4.1.3. The venue for all disputes arising under these Terms shall be the state in which you reside, but you and we may agree to conduct the arbitration by telephone, or online and/or solely based on written submissions. You hereby waive any right to claim that such location is an inconvenient forum and covenant not to sue us in any other forum. However, if the parties choose to conduct in-person proceedings and the arbitrator determines that this location imposes unreasonable burdens, the arbitrator has the power to order that the proceedings take place elsewhere.
12.4.1.4. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity (including attorney’s fees) and any award of the arbitrator will be final and binding on each of the parties.
12.4.1.5. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review.
12.4.1.6. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.4.1.7. Barring extraordinary circumstances, the arbitrator will issue a decision within 120 days from the date the arbitrator is appointed, which may be extended 30 days in the interests of justice.
12.4.1.8. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
12.4.1.9. The award of the arbitrator will be in writing and will not include any statement setting forth the reasons for the disposition of any claim. Either you or we may seek an injunction at any time from any court of competent jurisdiction as necessary to protect the rights or property of you or us pending the completion of arbitration.
12.4.1.10. Either you or we may start arbitration proceedings. Any arbitration between you and the parties of this agreement including, but not limited to ASH Fitness, Inc., will take place under AAA Rules, as modified by this Arbitration Agreement. You and the parties of this agreement agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. We can also help put you in touch with the AAA.
12.4.2. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, ASH will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse ASH for all fees associated with the arbitration that ASH paid on your behalf which you otherwise would be obligated to pay under the AAA Rules.
13. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY
13.1 BY USING THE WEBSITE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE AS FOLLOWS:
13.1.1. (i) THE WEBSITE AND ANY AND ALL INFORMATION, PRODUCTS, SERVICES, AND OTHER MATERIALS AVAILABLE THROUGH THE WEBSITE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ASH AND ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, AND ANY AND ALL INFORMATION, PRODUCTS, SERVICES, AND OTHER MATERIALS AVAILABLE THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND NON-INFRINGEMENT, WARRANTIES AGAINST COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASH AND ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY THAT THE WEBSITE OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL AVAILABLE THROUGH THE WEBSITE WILL BE ERROR-FREE, COMPLETE, ACCURATE, USEFUL, OR SECURE, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR THAT ANY DEFECT OR ERROR WILL BE CORRECTED. PRICE AND AVAILABILITY INFORMATION PERTAINING TO ANY PRODUCT OR SERVICE AVAILABLE THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE.
13.1.2. (ii) YOUR USE OF THE WEBSITE AND/OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL OBTAINED FROM THE WEBSITE IS ENTIRELY AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE.
13.1.3. (iii) EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL ASH OR ANY OF ITS LICENSORS/CONTENT PROVIDERS/SUPPLIERS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE WEBSITE OR ANY INFORMATION, PRODUCT, SERVICE, OR OTHER MATERIAL OBTAINED FROM THE WEBSITE, EVEN IF ASH AND RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
13.1.4. (iv) BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. ACCORDINGLY, NOTHING IN THIS SECTION 13 AFFECTS ANY WARRANTIES, DAMAGES OR LIABILITIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Miscellaneous
14.1. Not Intended for minors under the age of 18
14.1.1. Minors under the age of 18 years old are not permitted to use the PTRx Website without the permission and oversight of a parent or guardian.
14.2. Information Privacy
14.2.1. Your privacy is important to us. To learn more about how ASH protects your personal health information and personally identifiable information, collected on the PTRx Website, please refer to the Privacy Statement.
14.3. System Integrity
14.3.1. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the PTRx Website or any transaction conducted on the PTRx Website. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
14.4. Assignment
14.4.1. ASH may assign this User Agreement or any of its rights or obligations under this User Agreement, to any third party without your prior consent. This User Agreement will inure to the benefit of ASH’s successors, assigns and licensees.
14.5. Electronic Communications
14.5.1. By using the Website, you are communicating with ASH electronically, and you consent to receiving communications from ASH (or entities acting on behalf of ASH, including but not limited to payment processors) electronically, including emails and (if you have an account on the Website) messages posted to your account. You acknowledge and agree that all agreements, notices, disclosures, and other communications that ASH provides to you electronically satisfy any legal requirement that the same be in writing.
14.6. Notices
14.6.1. All notices required or permitted by this User Agreement shall be in writing and may be delivered in person or may be sent by registered or certified mail to the following address:
EmpoweredDecisions!14.7. Governing Law
P.O. Box 509040
San Diego, CA 92150-9040
14.7.1. This User Agreement shall be construed, governed by, and enforced solely and exclusively in accordance with the laws of the State you reside in, without giving effect to its conflict of laws provisions of your actual state or country of residence. You hereby agree that the courts located in the State of California, USA, will constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with this User Agreement and you hereby consent to the personal jurisdiction and venue of such courts and irrevocably waive any objections thereto.
14.8. Modifications
14.8.1. From time to time, we may update and modify this User Agreement and/or the PTRx Website (or any part thereof) to accommodate new technology, industry practices, regulatory requirements, or for other purposes. We will provide you with notice if the changes are material and, where required by applicable law, we will obtain your consent. Unless expressly otherwise agreed, all material changes will apply prospectively only. If you have an account on the PTRx Website, we may ask you to affirmatively agree to the changes (e.g., by checking a box or clicking a button) at the time of your next account login on the PTRx Website.
14.9. Waiver
14.9.1. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and ASH’s failure to assert any right under these Terms or to enforce any provision of these Terms shall not be deemed a waiver of such right or provision.