Terms of Use

Welcome, and thank you for your interest in Phyxd, Inc., d/b/a Phy (referred to as “Phy,” “we,” “our,” or “us,” herein).

About the Phy Solution. Using three-dimensional volumetric computer vision technology, the Phy Solution (the “Solution”) assesses postural patterns to help inform user’s and their health coaches and professionals regarding posture and musculoskeletal issues and offers options for exercise programs to optimize human movement and performance. Phy is backed by decades of neuromuscular therapy and exercise physiology research and practices as well as data-driven machine learning.

The Terms of Use apply to Phy and the Phy Solution (the term Solution including any and all scans, images, analyses and information (“Content”)). These Terms of Use are a legally binding contract between you and Phy regarding your use of the Solution.

The Phy Solution is made available for use by adults. The Phy Solution is not marketed to or intended for children under the age of 18, and we do not knowingly offer the Phy Solution to children under the age of 18, who are not emancipated, without obtaining parental consent. If you are under 18 years of age, and not an emancipated minor, then please do not use or access the Phy Solution at any time or in any manner, except with the consent of your parent or guardian. By agreeing to these Terms, you, and/or your parent or your legal guardian, as applicable, represent and warrant to us: (i) that you are at least eighteen (18) years of age, or with parental or guardian consent, at least (13) years of age; (ii) that you have not previously been suspended or removed from the Solution; and (iii) that your registration and your use of the Solution is in compliance with any and all applicable laws and regulations. If Phy discovers or has reason to believe that the preceding eligibility criteria are not met, it will terminate the account and not reinstate the account until eligibility criteria are met.

In order to access the Solution, you must either (i) register by providing complete information requested and setting up an account; or (ii) receive access through a coach or health care provider who has created an account on your behalf. The information provided can be updated at any time by accessing your Phy account.

While accounts are individual, you, as the account owner, may grant account access to additional users, such as coaches, healthcare providers, friends or family members. In doing so, you may choose to allow such additional users to retrieve, provide, and/or modify health and other information in your account, or otherwise share your information consistent with such individuals’ legal responsibilities with respect to the privacy and security of such information. If you allow other users to access your account, the Terms of Use, as well as the content of the Authorization between you and such individuals shall apply.

As the account owner, however, you are solely responsible for the activity that occurs through your account and the information shared. We urge you to keep your account password secure, to always log-off from the Solutions when leaving your device unattended, to only grant access to people whom you trust and to constantly monitor such use. Phy will not be liable for any unauthorized use of your account, and you may be liable for the losses of Phy or charges made by unauthorized use. We strongly recommend notifying us immediately of unauthorized use of your account or of any related security breach by writing to us at privacy@phy.health.

To the extent medical advice is provided to you by your Health Care Provider using the Phy Solution, such medical advice is based on the Health Care Provider’s professional judgment and your personal health data as provided by you to such Health Care Provider. The Phy Solution is not provided to be the sole source of information regarding your condition and shall not be used as the sole basis for or to drive diagnosis or treatment decisions.

You may be required to pay fees to access and use the Phy Solution. Upon your payment of such fees, your access and use of the Solution shall be in accordance with the terms specified at the time of purchase. Upon exhaustion of the fees for rights to access the Phy Solution, Phy may terminate access to the Solution. All fees are in U.S. Dollars and are non refundable. Phy will charge the payment method you specify at the time of purchase, and you authorize, Phy or its authorized third-party payment processor to charge all fees to such payment method. Phy may change the fees for the Solution, or the fees for any feature thereof, at any time, and you will be charged the applicable then-current fees. Phy is not responsible for any incomplete transaction, whether due to insufficient funds or for any other reason, though Phy reserves the right to suspend or terminate your access to and use of the Solution or any portion thereof, for failure to complete a payment hereunder. We reserve the right to change the amount of, or basis for determining, any fees or charges for the Solution or for any other services we provide, and to institute new fees, charges or terms effective upon prior notice to Users (which may be sent by email to the address you have most recently provided us).

Phy may provide tools through the Solution that enable you to export information to third party services. By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third-party services are not under our control, and we are not responsible for their use of your exported information.

The Solution may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.

If you violate any provision of these Terms, Phy may terminate your permission to use and access to the Solution. Additionally, Phy, in its sole discretion, may terminate your user account on the Solution or suspend or terminate your access to the Solution at any time, with or without notice. We also reserve the right to modify or discontinue the Solution at any time (including, without limitation, by limiting or discontinuing certain features of the Solution) without notice to you. We will have no liability whatsoever on account of any change to the Solution or any suspension or termination of your access to or use of the Solution. You may terminate your account at any time by contacting customer service at privacy@phy.health.

Please read the Phy Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Phy Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms of Use. By accessing the Phy Solution, you agree that your information may be shared for treatment, payment and operations purposes with payers and providers identified by you. You also specifically agree that your information may be used for research projects in which Phy may be engaged.

Your use of the Solution is subject to any and all additional terms, policies, rules, or guidelines applicable to the Solution or certain features of the Solution that we may post on or link to on the Solution (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Solution. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

The Solution is owned and operated by Phy. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), videos, photographs, software, services, and all other elements of the Solution (the “Materials”) provided by Phy are protected by all relevant intellectual property and proprietary rights and applicable laws. All components of the Solution are the property of Phy or our third-party licensors. Phy reserves all rights to the Solution not granted expressly in these Terms.

You agree that you will be responsible for your use of the Solution, and you agree to defend, indemnify, and hold harmless Phy and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Phy Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Solution; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

These Terms will be governed by the laws of the State of New York without regard to conflict of law principles. You and Phy agree to submit to the personal and exclusive jurisdiction of the courts located within Manhattan Borough, State of New York for the purpose of litigating all such disputes.

We both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

A party who intends to seek resolution of a dispute with Phy must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Phy’s address for Notice is: Phyxd Inc. d/b/a Phy, 39 Crosby Street, 2W, NYC, NY 10012. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Phy may commence a legal proceeding.

Further, unless both you and Phy agree otherwise, the court may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

If the Terms regarding dispute resolution are found to be unenforceable or if the entirety of the Terms regarding dispute resolution is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to these Terms.

Phy reserves the right to update or modify these Terms of Use at any time without prior notice, and such changes will be effective immediately upon being posted through the Solution, except as set forth below. Your use of the Solution following any such change constitutes your agreement to be bound by the modified Terms of Use. In the case of material changes to the Terms, Phy will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Solution, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of: (i) your first use of the Solution with actual notice of such change, or (ii) thirty (30) days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications. Without limiting the generality of the foregoing, no modification to the terms of our agreement to arbitrate disputes will be effective without your express consent, provided that if we propose a change to the terms of our agreement to arbitrate and you do not consent to the change, you must terminate your use of the Solution.

By using the Solution, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Phy will send non-PHI containing messages using email unless you object.

Secure electronic messaging is always preferred to insecure email, for your convenience, and with your permission, Phy lets you choose whether to receive email communications containing PHI. This email communication is not encrypted and may include messages from your treatment provider, appointment reminders, and other information regarding use of the Solution.

You should consider that standard email is not a secure means of communication. There is some risk that any PHI contained in email may be disclosed to, or intercepted, printed, or stored by, unauthorized third parties. Phy cannot ensure the security or confidentiality of messages sent by email.

The services hereunder are offered by Phyxd Inc. d/b/a Phy, 39 Crosby Street, 2W, NYC, NY 10012. You may contact us by sending correspondence to the foregoing address or by emailing us at privacy@phy.health.

These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Phy regarding your use of and access to the Solution, and except as expressly permitted above may be amended only by Phy in its sole discretion. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination or expiration of your account, these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration.