USER AGREEMENT, CONSENT AND AUTHORIZATION FOR USE OF MY INFORMATION BY DEXAFIT, LLC.
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY.
By using DexaFit services, you acknowledge that you have read and understand this User Agreement (this "Agreement") and are agreeing to the following terms as an agreement between you as a customer of DexaFit, LLC. ("DexaFit") and DexaFit.
Your checking the box is your indication that you assent to be bound by this Agreement. You are referred to in the following agreement as "I" or "me."
As a condition to my subscription to and my right to use DexaFit Services defined below, DexaFit and I agree as follows:
1. Access to DexaFit Services. DexaFit operates a fitness and wellness service enabling its subscribers ("Subscribers") to perform body composition scans, cardiovascular fitness tests, metabolic health test, report their health and fitness history and engage healthcare and wellness providers ("Wellness Providers") to obtain information and advice regarding the results of such testing and other wellness-oriented advice (the "DexaFit Services").
Subject to the terms of this Agreement and my payment of the Services Fees during the term of my subscription, DexaFit grants me a non-sublicensable, non-transferable, non-exclusive subscription to access and use DexaFit Services solely for my personal wellness, and not for resale or to provide services to third parties.
I agree that I will not, and will not attempt to: (a) interfere in any manner with the operation of DexaFit Services, or the hardware and network used to operate DexaFit Services; (b) sublicense or transfer any of my rights under this Agreement or otherwise use DexaFit Services for the benefit of a third party or to operate a service bureau; (c) modify, copy or make derivative works based on any part of DexaFit Services; (d) create Internet "links" to or from DexaFit Services, or "frame" or "mirror" any of DexaFit content which forms part of DexaFit Services; or (e) otherwise use DexaFit Services in any manner that exceeds the scope of use granted above. I agree to comply with the DexaFit Services System Rules posted from time to time at www.DexaFit.com or any web page accessed through that site.
I understand that there are risks presented by participating in using DexaFit Services including receipt by me of information about my health and fitness (such as metabolic characteristics) that I would prefer not to know, and which may indicate conditions or problems that may be upsetting to me or even incurable, and I assume those risk
I understand that should I use the DexaFit DXA scanner to perform a body composition analysis, I do so with full knowledge and awareness that this technology uses low-dose x-rays.
I understand that should I perform the VO2 Cardio Fitness test, I hereby consent to engage voluntarily in the test in order to determine my circulatory and respiratory fitness. Before I undergo the test or fitness program, I certify that I am in good health. Further, I hereby represent that I have accurately completed the VO2 Cardio Fitness Readiness form. I recognize that my failure to do so could lead to possible unnecessary injury to myself. I understand that during this test intensity will gradually be increased until symptoms such as fatigue, shortness of breath, or chest discomfort may appear, indicating to me that I should stop.
I understand that I am responsible for monitoring my own condition throughout the exercise test or fitness program and should any unusual symptoms occur, I will cease my participation and inform the DexaFit staff of my symptoms. I understand that the reaction of my heart, lungs, and blood vessels to such exercise cannot always be predicted with accuracy. I know there is a risk of certain abnormal changes occurring during or following exercise which may include abnormalities of blood pressure or heart rate, ineffective function of the heart and in rare instance, heart attack or death. Use of strength equipment can lead to musculoskeletal strains, pain and injury if adequate safety procedures are not followed.
2. Primary Care Physician. I represent and warrant that I am in good health, have had a recent health checkup, and have a primary care physician, and I understand and agree that DexaFit and Wellness Providers are only providing limited wellness services and are not a substitute for seeking the advice of my primary care physician or other qualified health care professionals. I agree that I will never delay seeking advice from my primary care physician or other health professionals due to information provided through DexaFit. I will seek emergency help when needed, and continue to consult with my primary care physician as recommended by Wellness Providers and by my primary care physician.
3. Changes . DexaFit Services, and the business, development and activities of DexaFit, are subject to change during my subscription as determined from time to time by DexaFit in its discretion. DexaFit has no obligations to create or include additional features or functionality for DexaFit Services or correct any errors. DexaFit may modify the terms of this Agreement on at least 30 days notice, and if I do not accept such modified terms I agree that I may cancel my subscription, but if I do not cancel my subscription, I agree that I am bound to such modification.
4. Registration and Health Information I have provided or will provide to DexaFit personal information that may include my name, address, telephone number, fax number, email address, insurance information, and other information required by DexaFit to register me as a Subscriber ("Registration Information "), and medical history, behavioral information, nutritional information and other health, family and personal background information ("Health Information"). Health Information that does not include any personally identifying information such as my name, the names of my health care providers and relatives, is my "De-Identified Information." I understand that I can update or revise my Registration Information and Health Information. I represent and warrant that (i) my Registration Information and Health Information will at all times be true, accurate and complete, and (ii) I am the person whose name and information I have provided and (iii) I am an adult 18 years of age or older residing in the United States.
5. Rights in Customer Data and Terms of Service: I authorize Dexa Fit LLC to review and/or share my records to determine my body scan and metabolic data qualifications for approved clinical studies and/or to use with third-party services or pilot studies. DexaFit agrees to contact me if I have potential as a research candidate.
I acknowledge that I retain all right, title and interest (including any intellectual property rights) in and to the Data generated by DexaFit’s technologies on my behalf as a DexaFit customer. I hereby grant DexaFit a non-exclusive, worldwide, royalty-free right and license to collect, use, analyze, store, transmit, modify and create derivative works with the Data generated and collected by DexaFit’s Technology Systems during my visit solely to the extent necessary to provide the DexaFit Service and related services to me as a customer and as otherwise provided below.
Aggregate/Anonymous Data and De-Identified Information: I agree that DexaFit will have the right to generate Aggregate/Anonymous Data and use my De-Identified Information.
Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is DexaFit Technology, which DexaFit may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve DexaFit’s products and services and to create and distribute reports and other materials).
DexaFit will not distribute my Aggregate/Anonymous Data or De-Identified Information in a manner that personally identifies me.
Security: DexaFit agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure.
These measures will include: (i) storing Customer Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Customer Data from unauthorized disclosure.
DexaFit takes no responsibility and assumes no liability for any Customer Data other than its express security obligations in this Section.
Storage: DexaFIt does not provide an archiving service. During the Agreement Term, Customer acknowledges that DexaFit may delete Information no longer in active use. DexaFit expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
6. Third Party Programs . I may subscribe for certain DexaFit Services and Goods and Services through a program sponsored by a third party such as my employer, a group to which I belong or other third party. I understand that my subscription and participation through such program will be subject to the terms of such program, which may include provision to a third party administrator, my employer or other group information about me, including whether and to what extent I have participated. DexaFit will not provide information regarding my health in a form that can be identified to me, without my specific approval through a click through or other “opt-in” mechanism.
7. Feedback. I may in my discretion choose to provide written or verbal feedback, comments, or input to DexaFit relating to current or future DexaFit Services or other opportunities for DexaFit ("Feedback"). I hereby assign to DexaFit all right, title and interest in any Feedback, including any Intellectual Property Rights (defined below) therein.
8. Costs and Payments . I acknowledge and agree that I will be responsible for all applicable fees for DexaFit Services and the Goods and Services I purchase (the fees for DexaFit Services are the "Services Fees") and for any applicable cancellation fees for cancellation of appointments without the required advance notice. Fees are established and subject to modification by DexaFit from time to time as determined by DexaFit. I understand that DexaFit will bill me for all Services Fees and for all Goods and Services, and I will pay such invoices when they are due. DexaFit may bill me in advance and may provide DexaFit Services and Goods and Services only after I pay my outstanding bills. Fees for Goods and Services may include fees for Wellness Providers and Testing Laboratories, and even if DexaFit provides a single charge for a "package" of services to me, I understand that such fees are separate and collected by DexaFit as an agent for such Wellness Providers and Testing Laboratories. By providing my credit card account information for payment of Services Fees and other charges, I represent and warrant that the credit card for which I provide account information is my credit card and I authorize DexaFit to charge to such credit card all applicable charges for the DexaFit Services and Goods and Services I have ordered.
9. No Medical or Health Services . I understand that DexaFit is not a Health Advisor or a Testing Laboratory, and DexaFit does not provide medical, health or other professional services or advice, nor does DexaFit itself perform any testing on my samples to provide Testing Results. DexaFit performs services and works together with Wellness Providers and Subscribers to facilitate data gathering and conducting data analyses that may help Wellness Providers and Subscribers work together to help Subscribers take a more active role in their well being.
I understand and agree that Wellness Providers are not the employees of DexaFit and are not providing services on behalf of DexaFit, but instead are independent professionals solely responsible for the services each provides to me. DexaFit does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Wellness Providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license.
10. HIPAA Acknowledgment and Authorization
Authorization for Use or Disclosure of Protected Health Information (Required by the Health Insurance Portability and Accountability Act – 45 CFR Parts 160 and 164 and California Civ. Code 56.11)
I hereby authorize all Wellness providers (“Wellness Providers”) and testing laboratories (“Testing Labs”) that provide services to me in connection with my subscription to services provided by DexaFit, LLC (“DexaFit”) to use and/or disclose the protected health information described below to DexaFit as follows.
Authorization for Release of Information. I hereby authorize the release of my complete health record contained in my account with DexaFit (including without limitation all Wellness Provider notes and diagnoses and Testing Labs results and the information I have contributed to my health record contained within my account), covering all past, present and future periods,
This health information may be used by DexaFit in order to provide the DexaFit services that I subscribed to and for any other uses that I consent to from time to time pursuant to the policies and agreements applicable to my subscription to services provided by DexaFit.
This authorization shall be in force and effect until I revoke it in accordance with the terms below.
I understand that I have the right to revoke this authorization at any time by providing written notice to support@DexaFit.com. I understand that a revocation is not effective to the extent that any person or entity has already acted in reliance on my authorization or if my authorization was obtained as a condition of obtaining insurance coverage and the insurer has a legal right to contest a claim. I further understand that, upon my revocation, my Wellness Providers and Testing Labs will no longer be able to disclose my health information to DexaFit nor DexaFit to Wellness Providers. Therefore, DexaFit services will no longer be available to me.
I understand that my treatment, payment, enrollment or eligibility for benefits will not be conditioned on whether I sign this authorization. However, I understand that failure to provide this authorization will prevent my Wellness Providers and Testing Labs from disclosing my health information to DexaFit, and that the DexaFit services therefore will not be available to me.
I understand that information used or disclosed pursuant to this authorization may be disclosed by the recipient and may no longer be protected by federal or state law.
I understand I have the right to receive a copy of this authorization by sending a written request to Info@DexaFit.com
11. Limitations . NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR DIRECT DAMAGES IN AN AMOUNT GREATER THAN $10,000, EXCEPT FOR A VIOLATION OF SECTION 15. NEITHER DEXAFIT NOR ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS ARE NOT LIABLE FOR THE ACTIONS OR OMISSIONS OF TESTING LABORATORIES OR WELLNESS PROVIDERS, AND I HEREBY AGREE THAT I WAIVE ANY AND ALL CLAIMS AGAINST ANY OF THEM ARISING FROM OR RELATING TO THE SERVICES PROVIDED TO ME BY TESTING LABORATORIES OR WELLNESS PROVIDERS.
13. Termination . Unless earlier terminated pursuant to this Agreement, the term of this Agreement ("Term") will commence upon my checking the "Accept" box and will continue for the period of time I am a subscriber to DexaFit Services. Either party may terminate this Agreement at any time on written notice with or without any reason. Upon termination:
a. DexaFit will not thereafter share Registration Information or Aggregate/Anonymous Data with any other party.
c. My access rights to DexaFit Services shall terminate.
d. All outstanding fees will become due and payable.
e. All Sections which by their nature survive termination of this Agreement shall survive.
I understand that, upon termination, I will not receive any refund or partial refund for any charges already billed to my account. I understand and agree that termination of this Agreement is my sole right and remedy with respect to any dispute with DexaFit. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or DexaFit's enforcement or application of this Agreement; (2) any policy or practice of DexaFit or DexaFit's enforcement or application of these policies; (3) my ability to access and/or use DexaFit Services; (4) any DexaFit software or services provided by or through DexaFit; or (5) the amount or type of fees, applicable taxes, billing methods, or any change to the fees, applicable taxes, or billing methods.
14. Notices . If there is an actual or suspected breach of the security of My Information, or any unpermitted disclosure or use of My Information, and DexaFit is required to provide notice of such actual or suspected breach or unpermitted disclosure or use to me under applicable federal or state law I hereby agree that such notice may be provided by DexaFit by email to the email address provided by me during my member registration, or as updated by me thereafter by written notice to DexaFit.
15. No Warranties . ALL SERVICES AND PRODUCTS PROVIDED BY DEXAFIT ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND DEXAFIT DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. Without limiting the preceding sentence, I acknowledge and agree that DexaFit is not responsible for the actions or omissions of my Wellness Providers or Testing Laboratories.
16. Ownership. DexaFit owns all right, title and interest to its software, processes, methodologies, documents and other materials, and all patent, copyright, trademark, and other rights of any nature arising from or relating in any way thereto ("Intellectual Property Rights"). No right to the Intellectual Property Rights of DexaFit is granted to me except to permit me to use DexaFit Services as a Subscriber.
17. Severability. Any provision of this Agreement determined to be void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will in full force and effect and enforceable according to their terms.
18. Miscellaneous . Any term of this Agreement may be amended or waived only with the written consent of the parties. This Agreement, including any exhibits hereto, constitutes the sole agreement of the parties and supersedes all prior agreements, understandings, representations and communications with respect to the use of DexaFit Services or the purchase of Goods and Services by me. Any notice required or permitted by this Agreement will be in writing and will be deemed sufficient upon receipt, when delivered by email to the most recent email address provided to the sending party by the receiving party. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.
19. Binding Arbitration and Equitable Relief . Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in San Francisco, California under the rules of the American Arbitration Association, except as set forth in the next sentence. Pending resolution by such final and binding arbitration, either party is entitled to seek temporary and preliminary specific performance and injunctive relief in any court of competent jurisdiction, without the posting of bond or other security, and the parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Francisco, California, for any such action.